Worksite Enforcement

When you think of immigration in the United States these days, the first thought that comes to your mind might be the continuing dispute over building a wall at the Southern border.  That topic has certainly received the most attention, but for employers, the more relevant issue remains the increasing worksite immigration enforcement measures.  Here are some recent statistics from Immigration and Customs Enforcement (ICE):

  • FY 2018 – 6,848 worksite investigations were opened (compared to 1,691 in FY 2017)
  • FY 2018 – 5,981 I-9 audits were initiated (compared to 1,360 in FY 2017)
  • FY 2018 – 779 criminal and 1,525 administrative worksite-related arrests were made (compared to 139 and 172, respectively, in FY 2017)

As you can clearly see from these statistics, far more employers have been selected for an I-9 audit by the government last year, and many more criminal and administrative worksite-related arrests (not to mention monetary fines) have followed.  This trend is projected to continue under the current administration, as it believes that worksite enforcement is “one of the most powerful tools ICE uses to ensure that businesses are complying with U.S. employment laws.”

Whereas larger companies were the more likely “target” for the U.S. government in the past, that is no longer the case.  Recently, ICE conducted an I-9 audit of a Korean grocery store in San Diego.  As a result of the audit of the employer’s I-9 forms, 26 people were found to be in the U.S. without authorization, and they were taken into ICE custody.  Other detailed results of the investigation were not provided, but presumably, the employer was ordered to pay monetary fines for their violations.

As you can see, employers cannot predict when the government will pay them a visit.  These audits can be completely random; they can be initiated through anonymous tips, or another agency can share information with ICE that prompts an I-9 investigation.  Therefore, it is a good idea to get ahead of the I-9 trend and do an internal audit of your company’s I-9 forms with the help of an experienced immigration professional to make sure everything is in order, or address and resolve any issues – before the government arrives at your door.

H-1B Cap

Once again, we have entered the H-1B cap filing season.  The H-1B is a popular nonimmigrant visa category that is available to highly skilled foreign nationals who are offered an H-1B-qualifying position by a U.S. employer.  This is also known as a “specialty occupation visa” because in order to be eligible for this visa category, the position that is being offered to a foreign national must require a minimum of a bachelor’s degree in a specific field and the foreign national must meet that requirement.

For foreign nationals working in the U.S., one of the biggest advantages to being in H-1B status is that even though it is a non-immigrant visa category (as opposed to an immigrant visa category), you can have an intent to reside permanently in the U.S., which can be convenient when you begin the permanent residence process.

As there are more petitions filed than there are visa numbers available, USCIS conducts a lottery each year to select the ones that it will adjudicate.  For this reason, all H-1B cap petitions must be filed in the first week of April.  So employers – if you have employees in a nonimmigrant status (typically students in F-1 status and have temporary work authorization through an Employment Authorization Document), please speak with an immigration attorney right away to discuss whether to file an H-1B cap on their behalf this season.

Since the federal government vowed to take strong measures against employers and unauthorized foreign workers under the “Buy American Hire American” (BAHA) Executive Order, we have seen an increase in the number of worksite enforcement visits and arrests.  U.S. Immigration and Customs Enforcement (ICE) has increased its workforce by four to five times, and as a result, there has been a dramatic increase in the number of worksite enforcement visits.  A review of this increase has also made it more difficult to predict which employer(s) might be targeted.

Here are some of the key worksite visits by ICE from the first nine months of 2018:

  • Last month ICE arrested 364 individuals during 30-days of enforcement visits in the midwestern states of Illinois (134), Indiana (52), Kansas (43), Kentucky (60), Missouri (42), and Wisconsin (33).
  • Also, last month ICE conducted a worksite visit at a family-owned business in Texas with 500+ employees and arrested ~160 foreign nationals. In 2014, the employer had paid a $445,000 fine for hiring individuals without proper work authorization.  (This likely put the employer on ICE’s continued radar.)  Remember that if a business has previously been audited by the government and fined, repeat violations can result in higher monetary fines and more serious charges.  So, it is in the business’s interest to implement measures to avoid committing the same types of violations in the future.
  • ICE served search warrants at various businesses in Nebraska and Minnesota resulting in the apprehension of 133 foreign nationals this summer. The businesses included a grocery store, restaurants, a private ranch, and a grain company.  According to ICE, these enforcement actions were part of a 15-month on-going investigation based on evidence that these employers were knowingly employing unauthorized workers.
  • In June 2018, 200 federal officers raided an Ohio gardening and landscaping company, arresting 114 foreign nationals suspected of being in the U.S. without lawful status. ICE also obtained volumes of business records to investigate and determine whether to file charges against the business.  It has been reported that the Department of Homeland Security had been receiving tips about the employer’s unlawful business practices for years, and it began investigating the employer after arresting a woman suspected of operating a document mill.
  • In April 2018, 97 foreign nationals working at a meat processing plant in Tennessee were arrested on federal and state charges. This was a joint operation between the Homeland Security Investigations arm, the Internal Revenue Service, and the Tennessee Highway Patrol.  According to the IRS, the business is under criminal investigation for evading taxes, filing false tax returns, and hiring immigrants without work authorization.  The government opened a case to investigate the business after the employer’s bank noticed large sums of money being withdrawn every week, supposedly to pay the unauthorized workers in cash.  The IRS alleges that the business failed to report $8.4 million in wages and failed to pay at least $2.5 million in payroll taxes.
  • In January 2018, ICE raided nearly one hundred 7-Eleven stores in 17 states and D.C. to issue Notices of Inspection and interview employees. The investigation led to 21 arrests.  ICE stated that this should be a clear message to employers who hire foreign nationals without proper work authorization.  ICE stated this raid was a follow-up enforcement operation on a 2013 raid where nine 7-Eleven owners and managers were charged with various crimes, including conspiring to commit wire fraud, stealing identities, and concealing and harboring undocumented individuals employed at their stores.

As these incidents make clear, employers need to take action now to review and assess their company’s hiring practices and get everything in order.  Even if your company does not routinely hire foreign nationals, you are still subject to immigration laws, most notably the ones relating to keeping proper Form I-9s and using E-Verify (where applicable).  Fixing a problem now, especially with help from immigration counsel, is much smarter – and less expensive – than fixing a problem after an ICE raid or other government enforcement action.

Department of Homeland Security (DHS) has recently announced its new entrepreneur program in which it is hoping to attract entrepreneurs from around the world to enter the U.S. and start U.S. businesses. Historically, that required either:

(1) Taking advantage of an existing E-1 or E-2 treaty between the investor’s country of citizenship (or perhaps multiple citizenships) and the U.S. leaving out the great majority of countries in the world and therefore citizens of those countries; or

(2) Investing at least one million dollars in the EB-5 program (though it could be reduced to $500,000 in high unemployment or rural areas). Continue Reading A Business Immigration Practitioner’s Take on the New Entrepreneur Program and Recent Trends

If you work in Human Resources, you are surely familiar with the Employment Eligibility Verification Form I-9 (“Form I-9”), and depending on the size of your company’s workforce, you might complete new I-9s on a regular basis.  But have you ever gone back to do an internal audit of the already completed Forms I-9?  Do you know the most common mistakes found on I-9s? Continue Reading Conducting an Internal Audit of Your Company’s I-9 Forms