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Recent Trends in ICE Notices of Inspections, E-Verify and H-1B Site Visits

ICE Issues 1,000 Notices of Inspection

This summer, Immigration and Customs Enforcement (ICE) issued 1,000 Notices of Inspection (NOI) of I-9 forms and administrative subpoenas to U.S. employers.  This is the largest I-9 inspection action since ICE issued 1,000 NOIs in November 2009, but unlike the 2009 action, ICE did not publicize its most recent enforcement effort.  Unfortunately, this wave of NOIs demonstrates a pattern of inconsistent document requests and timelines for companies to respond. 

Under 8 CFR Section 274a.2(b)(2)(ii), a company must be provided “with at least three days’ notice prior to an inspection of Forms I-9.”  Several ICE offices strictly limit the NOI response time to 3 days.  Others provided anywhere from 3 to 28 days to respond.  The recent round of NOIs included a range of requests for additional documentation and included a subpoena for the requested documentation.  The most commonly requested documents were:

  1. copies of correspondence from the Social Security Administration, sometimes identified as “No-Match” letters;
  2. a list of employees with Social Security Numbers, dates of birth and hire dates;
  3. quarterly tax statements and business information such as tax identification numbers; and
  4. an indication of whether or not the company was enrolled in E-Verify or the Social Security Number Verification System (SSNVS).

Contact your immigration counsel prior to responding to a NOI.  In addition, in order to minimize an employer’s risk due to defective I-9 forms, we recommend that every employer:

  1. implement a comprehensive, compliant and written I-9 policy;
  2. review its relationship with contractors, authorized agents and independent contractors;
  3. consider E-Verify; and
  4. consider electronic storage of its I-9s.

18 States Now Mandate Use of E-Verify System

U.S. law requires companies to employ only individuals who may legally work in the United States.  E-Verify is an internet-based system that allows an employer to determine the eligibility of its employees to work in the United States. E-Verify is fast, free and easy to use – and it’s the best way an employer can ensure a legal workforce.

As of September 8, 2009, federal contractors and subcontractors have been required to use E-Verify for all new hires and existing employees working on federal contracts if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause.  In addition, 18 states now mandate the use of E-Verify by most or all of its employers.  Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee and Utah require, or will require, E-Verify participation of most or all employers.  Florida, Idaho, Indiana, Minnesota, Missouri and Nebraska require public employers and state contractors to use E-Verify.  Virginia requires all public employers to use E-Verify.  Colorado requires all state contractors to use E-Verify.

USCIS Says To Expect More H-1B Site Visits

The USCIS, through its Office of Fraud Detection and National Security (FDNS), plans to increase its unannounced site visits to employers who have petitioned for H-1B status on behalf of one or more employees.  The primary purpose of the site visits is to detect, pursue and deter fraud within the H-1B program.  FDNS’ budget is derived from the $500.00 fraud fee paid by employers with each initial H-1B petition.

Site visits are typically unannounced.  However, an employer has the right to request that its immigration attorney be present during the site visit.  As such, an employer may request that the site visit be rescheduled to a time that is more convenient for the employer and its immigration attorney.

An employer who has filed good faith petitions on behalf of H-1B workers should not be at risk.  Nevertheless, to help prepare for a potential site visit, an employer should do the following:

  1. Contact immigration counsel immediately upon an FDNS site visit.
  2. Advise personnel responsible for greeting visitors that it is company policy not to admit any unauthorized person – including government agents or contractors – to the private areas of the business without the approval of a designated company official.  The designated company official should be knowledgeable of the employer’s immigration program and the conditions under which beneficiaries are employed.
  3. Request the name, title and contact information for the FDNS officer.
  4. Request a business card with a toll free number or call to obtain confirmation of his or her credentials prior to providing any information.
  5. Do not speak with government agents or contractors without a witness present.
  6. Retain copies of H-1B petitions and supporting documentation in a confidential file maintained by the designated company official; retrieve this documentation and review it prior to meeting with the FDNS officer.
  7. Accompany the FDNS officer during his or her review of your facilities and request to be present during the interviews of any of the company’s employees.  Note that this request may be denied in order for the officer to obtain the most candid responses from employees. 
  8. Prepare notes of what transpired at the interview and label them “Privileged and Confidential/Prepared at the Direction of Counsel” and keep a record of any documentation provided during the site visit.

If you have questions regarding the content of this message, please contact any member of Greenebaum’s Immigration Team.

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About Greenebaum Doll & McDonald PLLC
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