United States: DHS Announces Numerous Workplace Enforcement Initiatives
United States: DHS Announces Numerous Workplace Enforcement Initiatives
The Department of Homeland Security has recently announced new and enhanced initiatives to enforce federal workplace immigration compliance laws, including more frequent I-9 audits and employer site inspections, stricter adjudication policies and an initiative to promote the E-Verify employment eligibility verification program to the general public.
In recent meetings with the business community and communications with Capitol Hill, the Department of Homeland Security (DHS) has said that it will be focusing on workforce immigration compliance, including stepped up Form I-9 audits by Immigration and Customs Enforcement (ICE), more visits from U.S. Citizenship and Immigration Services (USCIS) site inspectors, and a campaign to raise the public’s awareness about worksite compliance.
Increased Workplace Audits, Penalty Structure for Violations
Immigration and Customs Enforcement (ICE) announced last week that it has issued about 1,000 new I-9 audit notices to employers around the country. This latest wave of audits is a continuation of an initiative ICE began in July, when more than 650 employers underwent I-9 audits, more than in all of 2008.
Though ICE did not identify the employers that have received audit notices, it did say that they are in industries related to public safety, infrastructure and national security. In the past, ICE has spearheaded similar audit initiatives aimed at critical sites like airports, power plants, public utilities and related private businesses. The July 2009 audits were, in Fragomen’s observation, focused largely on employers in industries like construction, agriculture and food processing, which have a high rate of employment eligibility compliance violations.
ICE also released previously confidential information about how it determines fines for violations. Overall, the minimum and maximum penalties for these violations are set by statute and regulation, and can be as high as $1,100 per technical violation and $16,000 per knowing hire violation. The ICE guidelines do not change the broad outlines of this penalty structure, but they do provide a window into how the agency determines the specific fines to be assessed against an employer that is found to have violated federal workplace immigration compliance laws. Under the guidelines, fines will be higher if the number of violations is a high percentage of the total workforce. ICE also has the discretion to modify fines upwards or downwards by up to 25%, taking into consideration the size of the business, the severity of the violations, the employer’s efforts to comply with the law and other factors.
Expanded USCIS Fraud Unit Site Visit Program
At USCIS, newly-appointed Director Alejandro Mayorkas recently announced that the agency’s Fraud Detection and National Security (FDNS) unit would conduct up to 25,000 employer site visits in Fiscal Year 2010 — nearly 20,000 more visits than were conducted in FY 2009. Fraud unit site visits are used to verify information that employers and foreign nationals provide in immigration petitions. In the last several months, these visits have focused largely on H-1B petitions, but as FDNS widens the scope of its inspection program, it could investigate other nonimmigrant and immigrant case types as well. (For detailed information and answers to frequently asked questions about the site visit program, click here.)
These increased site visits were announced by Director Mayorkas in a letter to Senator Charles Grassley (R-IA). Shortly after the USCIS Director took office several weeks ago, Sen. Grassley requested information on efforts within the agency to combat immigration fraud. In response to the Senator’s request, Director Mayorkas also revealed USCIS plans to verify the business operations and financial viability of petitioning employers and to train USCIS adjudications in fraud and compliance issues.
New E-Verify Public Awareness Program
USCIS has also announced a new “I E-Verify” campaign to promote the E-Verify electronic employment eligibility verification system. USCIS will run public service announcements that recognize E-Verify participating employers and encourage American consumers to patronize these businesses.
Fragomen’s Perspective on the New Initiatives
The Obama Administration has made workforce compliance the focus of its immigration enforcement efforts. In April 2009, DHS Secretary Janet Napolitano announced that the agency would shift its enforcement focus away from undocumented immigrants and onto employers. DHS is approaching compliance and enforcement on many fronts, ranging from these expanded audits and site visits to stricter adjudication policies and increased incidence of requests for evidence (RFEs) by immigration examiners.
As the agency focuses on compliance, employers need to be prepared. Companies should review their employment verification and immigration compliance policies, and implement best practices to minimize risk. Human resources and immigration personnel should also familiarize themselves with internal records and procedures to prepare for possible government inspections and audits. With the likelihood of lengthier and more demanding immigration adjudications, companies should also expect to provide more detailed information during the petition process and prepare for possible delays in their ability to on-board foreign national employees.
The Obama Administration’s enforcement initiatives foreshadow some of its likely positions in the coming debate on comprehensive immigration reform. In the past, broad immigration bills have failed because of disagreements between supporters of greater enforcement and supporters of legalization programs for undocumented workers. Taking strong action against workplace immigration enforcement now could give the Administration a stronger position from which to negotiate a broader reform package.
Fragomen’s Corporate Compliance Practice Group continues to monitor agency inspection and enforcement activities and work with government officials to advocate the most sensible enforcement policies and practices. If you have any questions about this Client Alert, please contact compliance@fragomen.com or the Fragomen professional with whom you usually work.
Source: Fragomen
