The Importance of I-9 and H-1B Compliance

September 19, 2018

Today, especially under the Trump administration, there has been much focus on the legality of individuals residing in this country. As such, worksite audits and maintaining a legal work force are imperative. Each U.S. employer is subject to an audit of its workers’ employment eligibility. Due to this, it is important to ensure that each business is being compliant with its Form I-9.

Employers that are sponsoring H-1B workers for employment must have their Public Access Files (PAF) so that they may formulate an understanding of who is permitted to inspect them. It is imperative that businesses adhere to the laws surrounding worksite audits, investigations, and enforcement measures.

Penalties for Non-Compliance

Beginning in January 2017, the U.S. Immigration and Customs Enforcement Agency (ICE) was responsible for issuing penalties to businesses that did not adhere to these laws. Even simple mistakes, such as paperwork violations, can now cost companies anywhere between $16 and $2,126 per each employee’s I-9 form.

Federal law requires that employers verify the identities and eligibility of each person whom they hire. This information must be documented using the Employment Eligibility Verification Form I-9. The purpose of this is to deter illegal citizens from taking jobs within the country. I-9 audits are conducted via the following process:

1. ICE/Homeland Security Investigations (HIS) serves an employer with a Notice of Inspection (Pending Audit).
2. Employers must produce their I-9 forms and other necessary documents, such as payroll records, with three days of notice.
3. HIS audit team reviews every form for technical or procedural violations and allows the employer 10 days to remedy.

Those employers who do not adhere to these laws will likely face civil fines if found during an I-9 inspection. Additionally, if these employers knowingly violate the law, they may even face criminal prosecution. All illegal employees that are found during this process, who are not allowed to stay in the country, are subject to arrest and removal from the U.S.

The H-1B Program

Under the H-1B program, the Department of Labor (DOL) must ensure that H-1B workers receive the wages promised to them on the Labor Condition Application (LCA). Employers must maintain a Public Access File with the correct documents to support that they attest and are compliant. The DOL may only initiate H-1B investigations under one of the following four reasons:

1. It receives a complaint from an afflicted individual or organization.
2. It receives specific credible information from a reliable source that the employer has not met certain LCA conditions, has engaged in a pattern that demonstrates failure to meet the conditions, or has committed a substantial failure to meet conditions that are applicable to multiple employees.
3. DOL has found that the employer has committed a willful failure to meet a condition specified in the LCA or has willfully misrepresented a material fact in the same, over the last five years.
4. DOL has reasonable cause to believe that the employer is not in compliance. If this is the case, the Secretary may certify an investigation.

The DOL may determine civil money penalties, among others, dependent upon the type and severity of the violation.

What Should Each Employer Do?

Each employer should make sure to designate who is responsible for dealing with immigration compliance and should review the current procedures, processes, and related documents. The immigration compliance team should also outline a plan if it ends up facing an audit and conduct periodic internal audits to ensure that all documents are correctly prepared. Employers should consider holding Human Resource training for those responsible for compliance.

If you or your company has been involved in any issues surrounding Form I-9 and H-1B Compliance, it is important to contact an attorney that knows what is at stake, what is expected, and how to help your organization. For more information, contact MacMain Leinhauser by filling out an online form or call us at 484-318-7106. Located in West Chester, Pennsylvania, we serve clients from the surrounding areas.