Employers Must Prepare for Increased Immigration Related Site Visits by DHS and State Wage and Hour Division Agents

Department of Homeland Security's dramatically increased I-9 employment eligibility verification enforcement efforts include targeting employers. DHS' new Worksite Enforcement Strategy (WES) includes increased enforcement through site visits to the workplace, administrative or "desktop audits" and an expanded definition of "employers" subject to penalties.

DHS has increased random, unannounced site visits and audits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services (USCIS). FDNS is using what it learns in “desktop” audits to add fraud indicators to its database in an effort to identify patterns and potential fraud during adjudications. State Wage and Hour Division audits and IRS audits also result in sharing I-9 related information with DHS.

Employers must prepare for immigration-related worksite inspections by developing and implementing compliance policies, internally auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. Employers should designate a company immigration compliance or employer sanctions officer who should work with the company immigration counsel and contact immigration counsel immediately upon an DHS/FDNS site visit, or a state wage and hour division site visit, and implement an investigation response plan in advance that includes everyone from upper management to receptionists.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits. 

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.
  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. 

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world.  Immigration law is a federal law practice not limited attorneys in a particular state.