Employers Can Learn from Boy Scouts. Be Prepared.
I’ve always admired the Boy Scouts of America motto, “Be Prepared”. Like the Boy Scouts, we as attorneys have an obligation to try to ensure our clients are prepared. In the context of compliance with our nation’s immigration laws, this means we want our employer clients to be ready for enforcement investigations and actions which are on the rise under the Obama Administration.
The U.S. Citizenship and Immigration Services (USCIS) is conducting worksite visits of U.S. employers with foreign workers participating in the H-1B and L-1 temporary visa programs. The USCIS’s Division of Fraud Detection and National Security (FDNS) hires outside contractors to investigate and confirm the accuracy of information submitted by employers in connection with H-1B and L-1 visa petitions. The contractors and visits are funded by a $500 fraud fee that petitioning employers submit with the initial petition on behalf of an H-1B or L-1 worker.
Although the instructions on the petition form place employers on notice of the possibility of such worksite visits, most employers likely overlook the USCIS’s right to verify any information submitted to establish eligibility for an immigration benefit at any time. It is within the USCIS’s purview to ensure compliance with all applicable laws and authorities, before or after a decision is rendered on a petition. The USCIS utilizes a variety of methods in ensuring compliance including: review of public records and information; written correspondence; the Internet; facsimile or other electronic transmissions; telephone; unannounced physical site inspections of residences and places of employment; and interviews.
In addition to the worksite visits conducted by the USCIS, U.S. Immigration and Customs Enforcement (ICE) also has initiated audits of employer I-9 records nationwide. It is believed that one purpose of the initiative is to shift the enforcement burden from ICE to employers to maintain a legal workforce. By forcing employers to ensure that their hiring records are compliant and that their workforce is employment authorized, it is believed that this will discourage undocumented workers from entering or remaining in the U.S. If they cannot find employment, such workers either will not come to the U.S. or they won’t stay here. They’ll go where they can find work.
Employers should be ready for either type of worksite visit. The potential civil and criminal failures on the part of an employer to comply with U.S. employment eligibility laws and regulations are too great not to be. It is clear that one visit doesn’t negate the possibility of future visits. In fact, it is not uncommon for FDNS to visit an employer multiple times, as each visit is usually limited to investigating one employee. Therefore, the employer is wise to stick by the Boy Scout motto and always “Be Prepared”, using whatever legal resources it has at its disposal. One never knows when the government is going to come knocking.
Garfinkel Law Group offers services to companies who seek guidance on worksite compliance matters and other legal requirements related to verifying the employment eligibility of your workforce. Our worksite compliance team navigates complex and ever-changing I-9 requirements and the intricacies of the E-Verify system. Our firm can assist by reviewing your companies process for I-9 maintenance. We can advise on how to implement E-Verify and we will help your professionals understand which documents to look for and when to ask additional questions.
Contact us today for assistance!
Jennifer Cory, Partner, Jennifer.Cory@GarfinkelImmigration.com
Published in the March 2010 issue of the NC Lawyer’s Weekly.