With the re-election of Donald Trump for a second term as president, there has been heightened speculation regarding his plans to increase scrutiny on foreign workers holding non-immigrant work visas. His first term clearly showed his preference for U.S. employers to prioritize the domestic workforce over hiring foreign talent.
In 2018, he initiated 6,500 I-9 audits, the highest number to date, to ensure non-immigrant workers were employed legally and properly documented. With Trump’s re-election, employers are once again concerned about potential repercussions and regulatory changes.
In this blog, we will delve into how organizations can comply with regulations, avoid hefty penalties or charges from Immigration and Customs Enforcement (ICE) audits, and maintain seamless business operations.
Let’s dive in!
Typically, there are three main types of compliance that an organization needs to manage to avoid penalties or face any legal issues.
I-9 Compliance Readiness
Organizations must ensure I-9 compliance, which can be maintained by correctly filling out and retaining the I-9 form. The I-9 form is used to establish the identity and work eligibility of employees hired in the U.S. It ensures that employers hire individuals who are legally authorized to work and helps prevent unauthorized employment.
Employers are obligated to possess a fully completed Form I-9, known as Employment Eligibility Verification, for every individual included in their payroll or receiving remuneration, as mandated by the form’s requirements. Additionally, employers are required to retain these completed Forms I-9 for a specific duration after their employees cease working for them.
Employers can maintain a practice of conducting periodic internal I-9 audits to ensure readiness when an audit occurs. This allows organizations to identify and rectify any gaps in documentation or information related to I-9 forms.
Key Steps for maintaining I-9 compliance include:
- Download the current version of the I-9 Form.
- Make a list of all current employees
- Make a list of employees terminated in the last three years
- Collate and verify existing copies of all I-9 forms (electronic or physical) for current employees and those that were terminated within retention requirements.
- Separate correct and completed forms into one bundle, and those with errors into another category.
- For forms with errors:
- Any changes should be clearly shown as a correction. Use a different colored ink, draw a line through incorrect information, and initial and date the changes to make sure it’s obvious.
- Major errors, such as entire sections left blank or based on unacceptable documents, may require a new Form I-9 to be completed.
- For missing I-9 forms, communicate with employees and get them to fill in the relevant section with necessary documentation.
- Maintain an audit log by documenting steps and amendments made.
- Repeat this for the next audit.
FDNS Compliance Readiness
Organizations must also ensure FDNS compliance. FDNS stands for Fraud Detection and National Security, which aims to maintain the credibility of U.S. immigration laws, safeguard the nation, and protect American workers. FDNS employs a variety of methods to detect and prevent immigration benefit fraud.
During an FDNS site visit, an FDNS officer will typically visit the worksite or business location associated with an immigration petition to verify that the information provided in the petition is accurate and truthful. The officer may conduct interviews with the petitioner, the beneficiary, and other relevant parties, and may also review documentation and other evidence to ensure compliance with U.S. immigration laws.
An FDNS site visit can occur at any time during the processing of an immigration petition, as part of the Fraud Detection and National Security (FDNS) program’s efforts to verify the information presented in pending and approved petitions. An FDNS site visit may occur:
- During the filing of a petition
- Soon after the petition is filed
- Well after the petition is filed
- After a consular interview
- In response to a tip or complaint about potential fraud related to an immigration petition.
- With H1B extension applications with the same H-1B
How To Prepare for a FDNS Site Visit?
- Follow compliance guidelines closely and organize paperwork appropriately.
- Have a response plan in place for site visits.
- Provide a copy of the petition to the beneficiary so he/she knows all details.
- If the petitioned-for employee has been placed at an end client location, the end client should be notified about the possibility of a site visit and how to respond to it.
- Provide accurate information to the FDNS officer. Ask for additional time if you need to collate information, but do not give false information.
- Conduct internal audits periodically to check preparedness
- Participate voluntarily during FDNS visits and respond to queries
- Stay prepared with details about the tasks and assignments the employee will carry out during training and how those tasks relate to the employee’s STEM degree.
- Keep all petition related documentation organized and easily accessible.
PAF Compliance Readiness
Having discussed how to ensure I-9 compliance and FDNS compliance, let’s now focus on how to achieve PAF compliance. Employers sponsoring employees in the H-1B, H-1B1, and E-3 visa categories have an obligation to maintain a Public Access File (PAF) for each employee. Employers are required to ensure that the PAFs are prepared within one working day of submitting the Labor Condition Application (LCA). Below is the documentation list you as an employer must include in the PAF:
- Signed Copy of the Certified LCA
- Notification Documentation
- Wage Rate Documentation
- Benefits Memorandum
- Explanation of Wage Determination
- Requirements for Employers after Corporate Restructuring
- Prevailing Wage Documentation
- Requirements for H-1B Dependent Employers and Willful Violators
Moreover, the Public Access File (PAF) can be stored either digitally or physically at the employer’s worksite. However, it should be kept separate from employees’ personal files for privacy reasons.
Conclusion
By diligently adhering to I-9, FDNS, and PAF compliance standards, employers can effectively mitigate risks, maintain a smooth workforce, and ensure the long-term success of their business. Regular internal audits, thorough documentation, and staying updated on the latest immigration regulations are crucial steps in maintaining compliance.
Remember, non-compliance can lead to severe penalties, including fines and legal action. By prioritizing compliance, businesses can operate with confidence and avoid potential legal pitfalls. Companies can leverage AI-enabled tools like Imagility to mitigate risks and adapt to an evolving regulatory environment easily.
