IMMIGRATION-RELATED AUDITS:WHAT EMPLOYERS NEED TO KNOW Presented by: David H. Nachman, Esq.
IMMIGRATION-RELATED AUDITS OVERVIEW There are three potential “hot spots” for audits and investigations by government entities in the U.S. related to the immigration and nationality laws. – 1. The H-1B Nonimmigrant Visa. – 2. The Immigration Reform and Control Act (I-9 Forms). – 3. Permanent Electronic Records Management (The PERM Labor Certification Process).
IMMIGRATION-RELATED AUDITS OVERVIEW Each of the foregoing government programs anticipates compliance through an “audit”. Even a basic understanding of the complex documents for each of these programs can help an employer and an employee avoid liabilities. The U.S. Department of Homeland Security (and other agencies) place emphasis on enforcement by fining non-compliant employers.
IMMIGRATION-RELATED AUDITS OVERVIEW Several U.S. Government Agencies involved to ensure compliance with U.S. immigration laws: – The U.S. Department of Homeland Security. – The U.S. Department of Labor. – The U.S. Department of State. – The Internal Revenue Service. – The U.S. Department of Justice.
IMMIGRATION-RELATED AUDITS OVERVIEW The H-1B Professional and Specialty Occupation Work Visa Petition requires an approved Labor Condition Application (“LCA”) – ETA Form 9035. U.S. Department of Labor (“DOL”) regulations govern the LCA and require that the employer pay the H-1B nonimmigrant 100% of the Federally Mandated Prevailing Wage (among other things). Employers are required to pay the H-1B nonimmigrant the prevailing wage and to maintain documents concerning the wages and the working conditions of an H-1B nonimmigrant. Employers are required to maintain documents referred to as a Public Access File (“PAF”).
IMMIGRATION-RELATED AUDITS OVERVIEW The PAF documents are required to be maintained at the H-1B worksite immediately after the employer files the Labor Condition Application (“LCA”) with the DOL. Under the American Competitiveness and Workplace Improvement Act (“ACWIA”), any H-1B nonimmigrant must be offered the same company benefits as those offered to “similarly situated” non-H-1B employees in the organization.
IMMIGRATION-RELATED AUDITS OVERVIEW DOL audits can arise as a result of: – Disgruntled Employees. – Random Audit by the DOL. – Investigation initiated by the U.S. Department of State (Consular Office). – Investigations referred by other Governmental Agencies.
IMMIGRATION-RELATED AUDITS OVERVIEW If a DOL Audit occurs (normally by the Wage and Hour Division) an employer may be found guilty of not: 1. Paying the H-1B nonimmigrant the specified wage; and/or 2. Maintaining PAF documents; and/or 3. Providing the H-1B nonimmigrant with the same benefits as those provided to all other “similarly situated” non-H-1B employees.
IMMIGRATION-RELATED AUDITS OVERVIEW Failures to comply with DOL regulations can result in: – The employer being liable to pay back wages to an H-1B employee; – Debarment from the use of the H-1B program; – Other potential civil and/or criminal liabilities. Employers who are government contractors can lose the ability to obtain U.S. government contracts.
IMMIGRATION-RELATED AUDITS OVERVIEW A second potential area for audit and investigation concerns employment verification (Form I-9) (referred to as the “Immigration Reform and Control Act of 1986” or “IRCA”). Every employee in the U.S. is required to prepare and retain an I-9 Form (with a few exceptions). Every HR Professional knows that IRCA is an integral aspect of every hire in the U.S.
IMMIGRATION-RELATED AUDITS OVERVIEW IRCA states that it is illegal for any U.S. employer to knowingly “hire” and “retain” workers who are not work authorized in the U.S. Every employer is required to properly verify the eligibility of an employee to work in the U.S. on the Form I-9. The I-9 Form is a deceptively simple one page document. Employers are required to review the “identity” and “work authorization” documents and to decide if the potential employee is authorized to work.
IMMIGRATION-RELATED AUDITS OVERVIEW Since the U.S. Department of Homeland Security’s (“DHS”) absorption of the Legacy-INS, the Immigration and Customs Enforcement Division (“ICE”) has been charged with worksite inspections and audits of I-9 Forms. The “good news” for employers is that the number of I-9 inspections has been on the decline. The “bad news” for employers is that ICE Officers are not inclined to be lenient and educate employers about their responsibilities but are more likely to impose sanctions.
IMMIGRATION-RELATED AUDITS OVERVIEW Given the present focus on “security” and “identity” in the U.S. workplace, it is likely that ICE Officials are going to continue to be active in their investigations. Leads for investigations can result from: – Disgruntled employees; and/or – Random audits; and/or – Special governmental investigations (hospitality).
IMMIGRATION-RELATED AUDITS OVERVIEW ICE identifies employers from a national database and targets specific industries that have developed a reputation for hiring unauthorized workers (e.g., restaurant, meat- packing, commercial cleaning, textile and garment, dairy, etc.). You can protect the organization with a self- audit.
IMMIGRATION-RELATED AUDITS OVERVIEW Due to national security concerns, great efforts continue to be placed on Form I-9 audits of businesses that deal with U.S. “critical infrastructures” such as airports, wastewater facilities, and highways. Employers may also have obligations to make sure “contractors” have done I-9 Forms.
IMMIGRATION-RELATED AUDITS OVERVIEW The third area from an audit perspective is the PERM Labor Certification Application (the “Green Card”) process. While the implementation of PERM in 2005 promised faster Green Cards, it also made the process much more complex.
IMMIGRATION-RELATED AUDITS OVERVIEW While PERM promises faster green card processing, the application process is much more complex. DOL sent a message that it was easier to audit the employer then to processing an Application.
IMMIGRATION-RELATED AUDITS OVERVIEW The PERM process requires a U.S. employer to obtain: – Obtain a Prevailing Wage Determination (the “PWD”); and – Conduct a rigid “recruitment process”; and – Conduct recruitment within a very discrete period of time; and – Show there are no able, willing and qualified U.S. workers who can take the job being offerred.
IMMIGRATION-RELATED AUDITS OVERVIEW A PERM Application is filed by making attestations on the ETA Form 9089. The ETA Form 9089 is submitted to the DOL and DOL can: – Certify the Form without receiving documentation; or – DOL can send out an audit letter.
IMMIGRATION-RELATED AUDITS OVERVIEW PERM Regulations state that DOL can request an audit of any pending PERM case “for cause” or in the DOL’s “discretion”. If the employer is audited, the employer will receive an audit letter that lists the documents that need to be submitted.
IMMIGRATION-RELATED AUDITS OVERVIEW The audit letter shall permit an employer thirty (30) days from the date of the letter to provide additional information or documents. If the employer does not respond, the PERM Labor Certification Application will be denied.
IMMIGRATION-RELATED AUDITS OVERVIEW It appears clearly to be the case that immigration-related programs that are undertaken by employers may be subject to either directed and/or random government audits from the DHS, DOL or other government agencies. Failure to adequately comply with government regulations can result in penalties. The employer’s familiarity with the intricacies of the auditing and compliance are likely to save considerable time and money.
QUESTIONS?Please feel free to contact our office if you should have additional questions: David_Nachman@visaserve.com 201-670-0006 ext. 100 http://www.visaserve.com Thank you.