Client Alert: ICE Announces Another 1,000 I-9 Worksite Audits on Thursday, November 19, 2009

1. ICE Announces Another 1,000 I-9 Worksite Audits on Thursday, November 19, 2009

On Thursday, November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notice of Inspections (NOIs) to 1,000 employers across the country associated with critical infrastructure. This follows an earlier initiative on July 1, 2009 when ICE issued 652 NOIs to businesses nationwide. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This is part of a new initiative illustrating ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said ICE Assistant Secretary John Morton. "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."
Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

Protecting employment opportunities for the nation's lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE's major enforcement priorities-specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.

Statistics since implementation of new ICE worksite enforcement strategy on April 30:

• 45 businesses and 47 individuals debarred;
          o 0 businesses and 1 individual were debarred during same period in FY 2008.
• 142 Notices of Intent to Fine (NIF) totaling $15,865,181;
          o ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
• 45 Final Orders totaling $798,179;
          o ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.
• 1,897 cases initiated;
          o ICE initiated 605 cases during the same period in FY 2008.
• 1,069 Form I-9 Inspections;
          o ICE initiated 503 Form I-9 Inspections in all of FY 2008.

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
• To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

A copy of the news release can be found at http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm

If you have been contacted by ICE or if you would like information on our next "I-9: Get Ready for an Audit" web seminar, or assistance with conducting an internal I-9 audit to determine if your company is in compliance, please contact Art Rivadeneyra at art@wolfsdorf.com

2. USCIS Continues to Conduct over 25,000 Surprise H-1B Worksite Visits

As part of the Department of Homeland Security's stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of USCIS. The FDNS division has engaged outside contractors and private investigators to conduct approximately 25,000 site visits to petitioners. In addition to verifying the validity of information contained in H-1B petitions, FDNS investigators are apparently using information collected during worksite visits to assist USCIS with developing a fraud detection database. FDNS investigators collect information to develop profiles of the types of organizations that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could be a sign of fraud. Many of these random, unannounced site visits are expected to occur after approval of the H-1B petition or extension. In fact, employers in all industries have reported such worksite visits in recent weeks.

Based on anecdotal reports, FDNS investigators typically ask to meet the H-1B worker and see some sort of identification to prove that the employee is who he says he is. FDNS investigators also ask to meet with someone from HR to confirm the H-1B or L-1 worker’s date of hire, title, work location and salary information. FDNS investigators typically work from a script of standard questions that compare the information in the petition to the information received at the worksite. They have also been instructed to take photographs of the company office building to confirm the existence of the business.

Another particular focus of H-1B investigations have involved companies employing less than 25 employees, or generating less than $10 million in gross revenues, or that have been in operation for less than 10 years. USCIS conducts these unannounced worksite visits to ensure compliance with the H-1B program and to verify that the company is a real operating business entity and that the person being sponsored is a “legitimate” employee. This includes verification that the H-1B employee is:

• actually working at the designated location
• being paid prevailing wage
• performing the job duties listed in the H-1B petition filed with USCIS.

Wolfsdorf Immigration Law Group recommends that employers prepare for immigration-related worksite inspections by developing and implementing robust compliance policies, auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. Wolfsdorf Immigration Law Group also recommends designating an immigration compliance officer, who should contact immigration counsel immediately upon an FDNS site visit, and implementing an investigation response plan in advance that includes everyone from receptionists through to upper management. Contact your Wolfsdorf attorney for help in preparing for potential onsite FDNS inspections.

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310) 570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

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This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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