Preparing for Possible Audits and Site Visits

Given President Trump’s immigration directives, which focus heavily on enforcement efforts, there is growing concern surrounding possible increases in site visits and audits by various agencies involved in immigration enforcement. This article gives a non-exhaustive list of areas where employers can audit themselves or seek counsel in order to ensure they are prepared for site visits concerning employees in nonimmigrant statuses such as F-1 and H1B.

F-1 STEM OPT Site Visits

Companies that employ one or more foreign nationals who are working pursuant to STEM OPT are subject to site visits by the U.S. Department of Homeland Security (DHS). In general, the DHS will notify the employer 48 hours prior to the site visit, but such advance notice is not required if there is reason to believe the employer is in noncompliance and/or a complaint has been filed against the employer. The DHS also has the option of requesting information via eMail or telephone prior to, or instead of, visiting the worksite in person.

There typically are two key issues that are examined during a STEM OPT site visit. First, the DHS will verify the employer has the resources and personnel necessary to maintain the program described in the training plan for STEM OPT students (form I-983) and supervise the foreign national. Second, the DHS may request evidence used by the employer to determine the wages of similarly situated U.S. workers.

H1B Public Access Files (PAFs)

For H1B purposes, an employer is required to maintain a PAF, which generally must include a signed copy of the certified LCA and cover pages, documentation confirming notification requirements have been met, documentation of the wage rate to be paid, an explanation of the system used to determine the actual wage, evidence of the prevailing wage, and a summary of benefits offered to similarly situated U.S. workers, including any statement on differences in benefits if not all employees receive the same. For more information on PAFs, see the MurthyDotCom InfoArticle, Six Things Every H1B Employer Must Include in Their Public Access Files (06.Jun.2022). To ensure compliance, employers should audit their PAFs to make certain that each one has been maintained for the required amount of time and with all necessary information. The Murthy Law Firm also offers PAF audit services.

H1B Worksite Locations

Employees in H1B status typically can work only from the locations specified in the labor condition application (LCA). With limited exceptions, if there is a change in work location, an H1B amendment must be filed prior to the location change. Employers should ensure their H1B workers are working from the locations specified on the LCA. Ensuring compliance in this regard may prevent serious immigration troubles down the road. And, if an employer discovers there has been a failure to comply, proactively taking steps to remedy the situation – likely, after discussing the matter with their attorney – may result in a far preferable outcome uncovered only after a site visit has taken place.

Wage Listed on the LCA

Employees in H1B status must be paid the wage listed in the LCA or the prevailing wage, whichever is higher. Employers should verify that all employees on H1B are being paid the required wages. If they are not, the employer should work with their attorneys immediately to resolve the issue. As noted above, acting in good faith to resolve an issue before a site visit tends to result in far better immigration outcomes.

I-9 Compliance

Employers must ensure that they are complying with all I-9 requirements. This generally means the employer must verify the identity and employment authorization of all new hires. In addition, depending upon the immigration status of the worker, the employer periodically may be required to re-verify that individual’s authorization to work.

I-9 records normally must be retained for either three years from the worker’s date of hire, or for one year beyond the date the employment ends, whichever is later. Other than retaining the I-9 form, if the employer chooses to keep copies of the documents presented by employees, the employer should be consistent in retaining such documents for all its employees.

Conclusion

Given that we are in an era of heightened immigration enforcement, it is important for employers to ensure that they are maintaining proper records and complying with the many requirements that surround employing individuals in various nonimmigrant statuses. The Murthy Law Firm offers services such as PAF audits, I-9 compliance audits, and related services that can ensure employers are prepared if an immigration officer comes knocking.

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