Recent Developments In Immigration Law

Monday, January 3, 2011 - 00:00

The United States Citizenship and Immigration Services ("USCIS") has been making unannounced site visits at companies that file H or L work visa petitions for their workers. For the most part, the visits have focused on a company's H-1B workers. The United States Department of Labor ("DOL") also has been carrying out its own investigations. For example, in a press release issued on August 17, 2010, the DOL announced that a computer consulting firm in Georgia had agreed to pay nearly $1 million in back wages and interest to 135 H-1B workers. According to the DOL, the company did not pay some of its H-1B workers any wages at the beginning of their employment, paid some workers on a part-time basis even though they were held out to be full-time employees, and paid some workers less than the required wages.

This article will review what these site visits are about and provide information about immigration-related investigations conducted by other government agencies.

Random H-1B Site Visits

Employers should expect a continuation of random, unannounced site visits conducted by the USCIS as part of its Administrative Site Visit Verification Program.

The inspectors appear without any prior notice at the employer's office to verify information included in the previously approved petition. Although some site visits have focused on L-1 employees, for the most part, the inspectors have concentrated on H-1B workers. To determine whether the employer is in compliance with the terms and conditions stated in the petition, the USCIS inspectors ask to speak to a company official and/or the foreign national, and have asked to review documents, and in some cases, for permission to photograph the premises.

These site visits are not limited to cases in which the USCIS has reason to doubt the bona fides of the employment. Inspectors have been showing up at large, prestigious institutions, including museums, well-known multinational corporations, law firms, banks, and institutions of higher education. In a recent case involving a prestigious arts organization, the inspector asked to see an official of the organization, and asked about the number of its physical job sites, how many workers it employs, how many visa holders it employs, and similar questions. The inspector also asked specific questions about the H-1B nonimmigrant's job duties, start date, and salary. After speaking with the organization's official, the inspector then asked to speak with the H-1B worker, asking him the same questions about job duties, salary, start date, and educational background. He also asked to see the H-1B worker's identification and pay stubs. Note that generally speaking, the site inspectors do not welcome or even allow the appearance of immigration counsel at the inspections.

Employers must make certain that they are in compliance with all the requirements of the H-1B and L-1 programs, and that the statements in their H-1B and L-1 petition papers accurately reflect the nature of the job and the qualifications of the foreign national to fill that job. They should also have a policy in place for dealing with the site visits, should keep records in an easy-to-access location, and should make sure that the receptionist knows who to contact in the event of a site visit.

The site visits of the Administrative Site Visit Verification Program must be distinguished from three other kinds of inspections: Labor Condition Application Inspections, I-9 Audits, and Worksite Raids.

Labor Condition Application Inspections

The Labor Condition Application (LCA), which is filed with and must be certified by the DOL, is the first step in obtaining H-1B, H-1B1, and E-3 status for foreign workers. When an employer files an LCA, it is attesting, among other things, that it will be paying the worker the required wage and providing benefits and working conditions that are no less favorable than those provided to its U.S. workers, that it has posted a notice that it intends to hire the H-1B (or H-1B1 or E-3) worker, that all the statements made in the LCA are true, and that it will maintain all required documents in a public access file.

The Wage and Hour Division of the Employment Standards Administration of the DOL may initiate investigations of LCAs on the basis of one of four factors:

• It receives a complaint from an aggrieved person or organization;

• It receives specific credible information from a reliable source (other than a complainant) that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet those conditions, or has committed a substantial failure to meet the conditions that affects multiple employees;

• The Secretary of Labor has found, on a case-by-case basis, that an employer (within the last five years) has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA. In such cases, a random investigation may be conducted; or

• The Secretary of Labor has reasonable cause to believe that the employer is not in compliance. In such cases, the Secretary may certify that an investigation be conducted.

When violations are found, the Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation, and may also impose other remedies, including the payment of back wages.

I-9 Audits

Since 1987, all U.S. employers have been required to complete the form I-9for everyone hired after November 6, 1986 if the employment is to last more than three days. Although U.S. Immigration Customs and Enforcement (ICE), the U.S. Department of Labor (DOL), and Office of Special Counsel are all authorized to inspect I-9s, ICE is the agency most likely to do so.

By regulation, ICE must provide at least three days written notice to the employer prior to the inspection, normally through a Notice of Inspection. No subpoena or warrant is required for an inspection, and a delay or refusal in presenting the forms I-9is a violation of the retention requirements set forth in the regulations. As soon as a Notice of Inspection is received, an employer should contact counsel. If a company does not comply with the request for presentation of the I-9s, the ICE officer may compel production by issuing a subpoena. Often, ICE will ask the employer to provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.

ICE agents or auditors then conduct an inspection of the Forms 1-9 for compliance. When technical or procedural violations are found, an employer is given 10 business days to make corrections, but an employer may receive a monetary fine for all substantive and uncorrected technical violations . Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations may be prosecuted criminally. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be subject to debarment by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.

Monetary penalties for knowingly hiring and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form 1-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.

Worksite Raids

ICE has been in the news lately for its unannounced raids of employers believed to employ undocumented workers. For example, in July, five Arkansas residents were sentenced for conspiring to harbor, transport, and employ illegal aliens, following an investigation by ICE and Homeland Security Investigations agents.

The guilty pleas stemmed from an investigation into the employment and transportation of undocumented foreign nationals as a source of labor for a poultry contracting and a loading company, businesses owned or controlled by the defendants. The guilty pleas were based on findings that illegal aliens were knowingly hired by the defendants to work on chicken catching crews, who were transported to various worksites, and were paid in cash.

An ICE special agent explained: "ICE aggressively targets employers who egregiously violate immigration laws by knowingly employing an illegal alien workforce." He warned that "[b]usinesses that use illegal alien workers to gain an economic advantage over their competition must understand that they will be held accountable for those unlawful practices."

In May, the president and office manager of two Illinois staffing companies that supplied temporary workers to suburban warehouses were charged with unlawfully hiring dozens of undocumented workers to form their labor pool. The charges resulted from a worksite enforcement investigation conducted by ICE.

In addition to hiring illegal workers, the defendants allegedly paid their workers' wages in cash and failed to deduct payroll taxes or other withholdings, according to a single-count criminal information filed in the Northern District of Illinois.

"Employers in all industries and locations must comply with the nation's immigration laws if we are to have an effective immigration enforcement strategy in this country," said a special agent in charge of the ICE Office of Investigation in Chicago. "ICE is committed to ensuring that employers are held accountable for maintaining a legal workforce. The goal of our enforcement effort is twofold - reduce the demand for illegal employment, and protect job opportunities for the nation's lawful workforce."

Theodore (Ted) Ruthizer and Mark D. Koestler are Partners and Co-Chairs of Kramer Levin Naftalis & Frankel's Business Immigration Practice. With more than 30 years experience, Mr. Ruthizer is recognized as one of the nation's leading immigration lawyers. Mr. Koestler has developed a national reputation in the handling of immigration law matters in the areas of advertising, theatre and film.

Please email the authors at truthizer@kramerlevin.com or mkoestler@kramerlevin.com with questions about this article.