Preparing for I-9 Investigations
U.S. employers are responsible for verifying the identity and employment authorization of each person they hire. Noncompliance with those verification requirements is a civil violation that's as serious as knowingly hiring or continuing to employ an unauthorized alien here in the United States. Penalties and fines for I-9 compliance violations range from $216 to $2,156 per error or omission.
Engaging in an internal I-9 review is a practical way to ensure that technical errors are spotted and timely corrected. Employers must determine if they will review all I-9 forms or if a sample of I-9 forms will be audited, and employers should ensure that any subset of I-9s are carefully chosen to avoid discriminatory or retaliatory audits. Employers should not conduct internal audits based on an employee's citizenship status or national origin, or in retaliation against any employee or employees for any reason.
Best Practices for I-9 Compliance
Designate a trained HR leader to centralize the I-9 process and who is responsible for creating internal processes and procedures for I-9 completion, retention, and storage.
Conduct internal training to ensure that employees responsible for this function are well informed and understand anti-discrimination protocols. Do the individuals responsible for I-9 verification know the federal guidelines surrounding the I-9 process and have substantial knowledge of the M-274 Handbook for Employers?
Does the employer have a system for tracking certain immigration statuses and ensuring that re-verification takes place timely? It can be cumbersome and labor intensive to manually track the expiration and remind workers to provide updated documents in a timely fashion. There is plenty of room for human error on the employer side which may allow an employee to become unverified and place the company out of compliance. Ensure that I-9 tracking systems are up to date.
Be sure to advise employers to verify remote employees properly and timely. Remote employees must still complete Section 1 of the Form I-9 and have their identity and/or work authorization documents reviewed in person by a trusted agent or representative. Photocopying of documents and sending them to employer is not permitted. Employers should provide clear instructions to new hires on how to complete the I-9 process if they are remote workers, and employers should establish a review process for all remotely completed I-9s.
Employers should plan on conducting a routine self-audit at least once per year to help ensure ongoing compliance with the employment verification, I-9, and E-Verify rules. Special guidance and rules exist for correcting errors and/or omissions on various sections of the Form I-9 as well as how the employer should properly handle lost, incomplete, or outdated I-9s. HR should also set protocols for requesting additional documents from existing employees, and employers should provide employees with a reasonable amount of time to address any deficiencies associated with their Forms I-9. The reasonableness of the timeframe should be determined on a case-by-case basis, taking into consideration the specific nature of the deficiency and the time required to present alternative documentation.
The Unexpected Site Visit
If an employer has hired foreign nationals working in H-1B or L-1 status, then it is possible that the Office of Fraud Detection and National Security (FDNS) may conduct an investigation to verify the consistency between the information on file as part of the individual's nonimmigrant petition and the actual onsite circumstances. FDNS works to detect immigration fraud and to ensure compliance with rules relating to work visa programs. FDNS site visits are usually unannounced and preparing for a site visit will provide an employer a significant advantage.
Employers should be sure to designate a single point of contact to meet with the FDNS officer and to address any employment related questions. Employers should also ensure that designated company representatives are aware of the possibility of site visits and that the representative has access to the foreign national's petition and employment data. The purpose of site visits is to confirm that the employer exists, the foreign worker is engaged in the required job duties, and that the worker's wage is the same salary reflected in the underlying visa petition.
Prepare Foreign Workers
U.S. Citizenship and Immigration Services (USCIS) has increased its antifraud staff in order to spike the number of onsite visits to U.S. companies that employ H-1B and L-1 foreign workers. These onsite inspections are designed to confirm the bona fide nature of the petitioning U.S. employer as an operating company, verify the identity of the U.S. employer and foreign worker, and ensure compliance with the terms and conditions of the work status.
Keep in mind that USCIS is required to obtain employer consent to conduct the site visit and review the H-1B and L-1 files of the employer and to speak to the foreign employee; the purpose of this discussion is to determine if the employee's work is consistent with the terms and conditions listed in their immigration petition. The employee will be expected to speak comprehensively about the position and their U.S. employment, and there may be questions regarding the foreign national's educational background and prior work experience. U.S. companies should work closely with their employee so that they not only anticipate and prepare for this type of visit, but are comfortable speaking with an immigration officer knowledgeably about their status, terms and conditions of employment, and eligibility for their immigration status.
Maintain Best Practices Within an Immigration Program
Immigration compliance is essential especially in an era of heightened enforcement with increasing levels of global employee movement. Developing a compliant immigration policy will allow employers to avoid penalties and mitigate business disruption that may accompany immigration-related violations.
Companies who engage in hiring foreign national employees should prepare a formal compliance plan that is in writing. A solid immigration plan will establish clear hiring practices and procedures, designate the appropriate parties that will be involved in foreign national hiring, create timelines for the preparation of various immigration applications and petitions, and ensure consistencies within the company. Employers should also have quick access to policies, visa requirements, questionnaires, case status, travel guidance, and contact information for those designated to assist with the foreign national hiring process. Companies may also want to consider regularly auditing their immigration files including Public Access Files and the necessary documents relating to the Labor Certification process.
A rapidly increasing international workforce makes it critical that employers develop appropriate workflows and create internal policies to deal with the limitations of immigration laws and to ensure employers have a comprehensive and effective immigration compliance program. Increased enforcement activities under the Trump Administration continue to be expected, and employers must proactively assess and review their immigration activities and programs to protect themselves from liability.
This article originally appeared in the Winter 2019 issue of the Maryland State Bar Association Section of Labor & Employment Law Newsletter.