Written by Ana Delgado Hualde, Esq., Associate Attorney.
Government worksite visits and audits related to immigration compliance increased significantly in the first Trump administration, and they are expected to rise again during his second term in the White House.
These audits can impact an organization’s ability to hire and retain foreign talent, result in fines, and lead to other penalties in some severe cases.
The following white paper provides an overview of the different types of federal worksite audits, how to prepare, the best practices for proactive compliance, and how to respond if your company is audited.
Types of Federal worksite visits and audits
I-9 audits
I-9 audits are conducted by Homeland Security Investigations (HSI), the investigative arm of the Department of Homeland Security (DHS). The purpose of these audits is to ensure Form I-9 compliance.
The government usually issues a Notice of Inspection, and the employer is then permitted three business days to produce the I-9 forms. If the government identifies technical violations, it will issue a Notice of Technical or Procedural Failures and the employer then has 10 days to make corrections.
FDNS worksite visits
The Office of Fraud Detection and National Security (FDNS), part of U.S. Citizenship and Immigration Services (USCIS), conducts site visits to ensure the accuracy of the information in visa petitions (e.g. H-1B and L-1). Many FDNS worksite visits are unannounced.
These visits may occur at the employer’s principal place of business and/or at the nonimmigrant employee’s work location as indicated on the Form I-129.
During the visit, the officers will typically request to speak with the employer’s representative who signed the Form I-129. However, the FDNS officer can ask to speak to another employer representative such as an HR Manager, since the site visit is unannounced, and the employer’s representative may not be available.
STEM OPT worksite visits
During a STEM OPT Worksite Visit, Immigration and Customs Enforcement (ICE), ensures that companies and F-1 students are complying with their approved STEM OPT Training Plan (Form I-983) and with STEM OPT reporting requirements. ICE normally provides limited advance notice to the employer, but a site visit may occur without notice if the visit is triggered by a complaint or other evidence of noncompliance.
The site visits may take a prolonged period if there are many F-1 students at the worksite. The visit will likely include individual interviews with company personnel, particularly the F-1 student’s manager or supervisor.
ICE worksite raids
No notice is given before a worksite raid by Immigration and Customs Enforcement (ICE). ICE agents (and sometimes local law enforcement) will arrive at a workplace unannounced to try to find a particular person (or people) or investigate suspected criminal activity. While they are there, they may try to question, detain and even arrest other people. These raids can sometimes last for hours.
ICE must present a judicial warrant to be able to enter the private areas of the worksite. If ICE only has an administrative warrant, the employer can decline to provide information and access to non-public areas.
ICE agents are only allowed in public spaces like the parking lot or the lobby unless they have a signed judicial warrant or obtain consent. Even with a judicial warrant, they should only be able to enter the area described on the warrant signed by the judge.
They may try to talk to, question or make requests to employees, but all individuals have the right to remain silent and they may choose not to speak to the officer. Employees should be made aware that they have the right to remain silent and that anything they say can be used against them later.
Differences between subpoenas and warrants
Subpoenas are generally used to obtain records or information or to compel someone to appear in court on a future date. Warrants are generally used to obtain immediate access to premises and people, usually for activities like arrests, searches, and seizures.
Both types of court orders can either be signed by a government official (administrative subpoena or warrant) or a judge or magistrate (judicial subpoena or warrant). An administrative subpoena or warrant does not require compliance. A judicial subpoena or warrant requires compliance.
How to proactively prepare for worksite visits and audits
Employers, business owners and HR professionals should take the following steps to proactively prepare for a potential worksite visit.
Ensure proper I-9 compliance
Employers must comply with the Immigration Reform and Control Act (IRCA), which mandates that all U.S. employers verify the identity and employment authorization of their employees. Non-compliance can result in significant civil penalties, criminal liability, and reputational harm. Many employers use E-Verify, an online system by DHS, to confirm new hires’ work eligibility by matching their Form I-9 details with government records. Notably, E-Verify laws vary from state to state.
LEARN MORE about E-Verify and Form I-9 compliance.
Designate points of contact
Employers and business owners should assign a primary representative and an alternate contact and train them on compliance and interaction protocols, in the event they must interact with ICE, FDNS, SEVIS or other government representatives during a worksite visit, audit or raid.
Employers should alert reception staff and key personnel about potential visits and ensure they understand escalation procedures, including which representatives should be alerted to a worksite audit or raid.
Know their workforce
Employers, business owners and HR professionals should understand the makeup of their workforce and their immigration statuses. All visa-related documentation should be stored in a central, secure location, and all Labor Condition Applications (LCAs) must be posted and accessible as required by law.
Organize documents
All records should be kept organized and accessible. This includes detailed records of corporate documentation, visa petitions, STEM OPT training plans, Public Access Files, LCAs and payroll records.
Employers should ensure all employment conditions match what was listed in petitions for visa holders, when applicable.
Ensure employee awareness and reinforce facility readiness
Employers should inform employees of potential visits and their rights. Employees should be familiar with their visa petitions so that they are prepared to confirm job title, duties, and salary, refer investigators to the designated representative, and avoid extraneous information. HR teams should be regularly trained on immigration compliance requirements.
Employers should also ensure compliance with OSHA standards and display all required notices in the workplace.
Consult with experienced immigration counsel
With the expected increase in worksite enforcement, employers of all sizes should consider consulting with experienced immigration counsel to proactively prepare. Immigration counsel can help employers develop a plan in the event of a worksite visit, perform internal audits to identify and correct potential errors, train HR staff, and more.
How to respond to worksite visits or audits
The government could visit a worksite for many different reasons, such as random selection through FDNS audits, complaints or tips, extensions or changes of status requests, and/or employer obligations. Employers of all sizes and industries should be prepared for a government worksite visit or audit.
Companies should follow the below steps if they are subject to an agency visit or audit:
Direct agents to primary or secondary point of contact
Agents from any government agency who arrive at the workplace should be directed to the primary or secondary point of contact referenced above. The point of contact should then request to review a subpoena or warrant from the agents. If more time is needed or a different person must review documentation, agents should be asked to remain in a public area. Politely request rescheduling if the designated contacts are unavailable. Without a judicial subpoena or warrant, compliance is not required. It is also important to be familiar with the contents and issuing authorities of each type of subpoena and warrant.
Contact legal counsel
The primary or secondary representative should contact immigration counsel immediately after the government agents arrive at a worksite, or the company receives a Notice of Inspection (NOI).
Remain professional and calm
Federal agents are trained to gather information, sometimes using persuasion or intimidation. Inform the agent of the workplace’s protocol for handling law enforcement requests. For example, advising the agent that the company has a designated representative to speak with them and that you need to contact and inform that representative that agents are here.
The designated contact should ask for the agent’s identification and business card and guide them to a private conference room away from public areas.
This does not grant the agent consent to access the facility but allows for a private discussion about their purpose and whether they have any legal documents. Take detailed notes about the investigator’s questions and the responses given.
Do not allow the investigator to wander through the premises
The company representative should insist on accompanying the investigator at all times and ensure they specify what they want to see.
The representative should take detailed notes about every location visited, questions asked, and records reviewed. They should be present for all conversations between the investigator and any employee, and document these discussions in detail.
Document review
Ask the investigator to specify which records they are requesting, and make sure to avoid handing over files that may contain private or irrelevant information.
Further, investigators should not be allowed to remove any documents from the premises. Instead, politely offer to photocopy any necessary items and forward them to the investigator’s office at a later time.
After worksite visit concludes
After the worksite visit concludes, employers should record as much information as they can about what took place, such as the number of agents present, how they dressed, what they said to employees, and other behavior.
As a best practice, employers should also debrief with their internal team and their legal counsel, address any follow-up requests promptly, and implement corrective actions to address any identified issues, if applicable.
Conclusion
Immigration-related worksite visits and audits are on the rise once again during the second Trump administration. Experienced immigration counsel can help employers, business owners and HR professionals prepare for potential government worksite enforcement measures by furthering their understanding of the different types of visits and audits, explaining best practices and how to implement them, and putting together a response plan.
Resources
Worksite visit Q&A for employers