1. IMMIGRATION-RELATED AUDITS:
WHAT EMPLOYERS NEED TO KNOW
Presented by:
David H. Nachman, Esq.

2. IMMIGRATION-RELATED AUDITS OVERVIEW
 There are three potential “hot spots” for
audits and investigations by government
entities in the U.S. related to the immigration
and nationality laws.
– 1. The H-1B Nonimmigrant Visa.
– 2. The Immigration Reform and Control Act (I-9
Forms).
– 3. Permanent Electronic Records Management
(The PERM Labor Certification Process).

3. IMMIGRATION-RELATED AUDITS OVERVIEW
 Each of the foregoing government programs
anticipates compliance through an “audit”.
 Even a basic understanding of the complex
documents for each of these programs can help an
employer and an employee avoid liabilities.
 The U.S. Department of Homeland Security (and
other agencies) place emphasis on enforcement by
fining non-compliant employers.

4. IMMIGRATION-RELATED AUDITS OVERVIEW
 Several U.S. Government Agencies involved
to ensure compliance with U.S. immigration
laws:
– The U.S. Department of Homeland Security.
– The U.S. Department of Labor.
– The U.S. Department of State.
– The Internal Revenue Service.
– The U.S. Department of Justice.

5. IMMIGRATION-RELATED AUDITS OVERVIEW
 The H-1B Professional and Specialty Occupation Work Visa
Petition requires an approved Labor Condition Application
(“LCA”) – ETA Form 9035.
 U.S. Department of Labor (“DOL”) regulations govern the LCA
and require that the employer pay the H-1B nonimmigrant
100% of the Federally Mandated Prevailing Wage (among
other things).
 Employers are required to pay the H-1B nonimmigrant the
prevailing wage and to maintain documents concerning the
wages and the working conditions of an H-1B nonimmigrant.
 Employers are required to maintain documents referred to as a
Public Access File (“PAF”).

6. IMMIGRATION-RELATED AUDITS OVERVIEW
 The PAF documents are required to be maintained
at the H-1B worksite immediately after the employer
files the Labor Condition Application (“LCA”) with the
DOL.
 Under the American Competitiveness and Workplace
Improvement Act (“ACWIA”), any H-1B nonimmigrant
must be offered the same company benefits as those
offered to “similarly situated” non-H-1B employees in
the organization.

7. IMMIGRATION-RELATED AUDITS OVERVIEW
 DOL audits can arise as a result of:
– Disgruntled Employees.
– Random Audit by the DOL.
– Investigation initiated by the U.S. Department of
State (Consular Office).
– Investigations referred by other Governmental
Agencies.

8. IMMIGRATION-RELATED AUDITS OVERVIEW
 If a DOL Audit occurs (normally by the
Wage and Hour Division) an employer may
be found guilty of not:
1. Paying the H-1B nonimmigrant the specified
wage; and/or
2. Maintaining PAF documents; and/or
3. Providing the H-1B nonimmigrant with the same
benefits as those provided to all other “similarly
situated” non-H-1B employees.

9. IMMIGRATION-RELATED AUDITS OVERVIEW
 Failures to comply with DOL regulations can result
in:
– The employer being liable to pay back wages to an H-1B
employee;
– Debarment from the use of the H-1B program;
– Other potential civil and/or criminal liabilities.
 Employers who are government contractors can lose
the ability to obtain U.S. government contracts.

10. IMMIGRATION-RELATED AUDITS OVERVIEW
 A second potential area for audit and investigation
concerns employment verification (Form I-9)
(referred to as the “Immigration Reform and Control
Act of 1986” or “IRCA”).
 Every employee in the U.S. is required to prepare
and retain an I-9 Form (with a few exceptions).
 Every HR Professional knows that IRCA is an
integral aspect of every hire in the U.S.

11. IMMIGRATION-RELATED AUDITS OVERVIEW
 IRCA states that it is illegal for any U.S. employer to knowingly
“hire” and “retain” workers who are not work authorized in the
U.S.
 Every employer is required to properly verify the eligibility of an
employee to work in the U.S. on the Form I-9.
 The I-9 Form is a deceptively simple one page document.
 Employers are required to review the “identity” and “work
authorization” documents and to decide if the potential
employee is authorized to work.

12. IMMIGRATION-RELATED AUDITS OVERVIEW
 Since the U.S. Department of Homeland Security’s (“DHS”)
absorption of the Legacy-INS, the Immigration and Customs
Enforcement Division (“ICE”) has been charged with worksite
inspections and audits of I-9 Forms.
 The “good news” for employers is that the number of I-9
inspections has been on the decline.
 The “bad news” for employers is that ICE Officers are not
inclined to be lenient and educate employers about their
responsibilities but are more likely to impose sanctions.

13. IMMIGRATION-RELATED AUDITS OVERVIEW
 Given the present focus on “security” and
“identity” in the U.S. workplace, it is likely that
ICE Officials are going to continue to be
active in their investigations.
 Leads for investigations can result from:
– Disgruntled employees; and/or
– Random audits; and/or
– Special governmental investigations (hospitality).

14. IMMIGRATION-RELATED AUDITS OVERVIEW
 ICE identifies employers from a national
database and targets specific industries that
have developed a reputation for hiring
unauthorized workers (e.g., restaurant, meat-
packing, commercial cleaning, textile and
garment, dairy, etc.).
 You can protect the organization with a self-
audit.

15. IMMIGRATION-RELATED AUDITS OVERVIEW
 Due to national security concerns, great
efforts continue to be placed on Form I-9
audits of businesses that deal with U.S.
“critical infrastructures” such as airports,
wastewater facilities, and highways.
 Employers may also have obligations to
make sure “contractors” have done I-9
Forms.

16. IMMIGRATION-RELATED AUDITS OVERVIEW
 The third area from an audit perspective is
the PERM Labor Certification Application (the
“Green Card”) process.
 While the implementation of PERM in 2005
promised faster Green Cards, it also made
the process much more complex.

17. IMMIGRATION-RELATED AUDITS OVERVIEW
 While PERM promises faster green card
processing, the application process is much
more complex.
 DOL sent a message that it was easier to
audit the employer then to processing an
Application.

18. IMMIGRATION-RELATED AUDITS OVERVIEW
 The PERM process requires a U.S. employer
to obtain:
– Obtain a Prevailing Wage Determination (the
“PWD”); and
– Conduct a rigid “recruitment process”; and
– Conduct recruitment within a very discrete period
of time; and
– Show there are no able, willing and qualified U.S.
workers who can take the job being offerred.

19. IMMIGRATION-RELATED AUDITS OVERVIEW
 A PERM Application is filed by making
attestations on the ETA Form 9089.
 The ETA Form 9089 is submitted to the DOL
and DOL can:
– Certify the Form without receiving documentation;
or
– DOL can send out an audit letter.

20. IMMIGRATION-RELATED AUDITS OVERVIEW
 PERM Regulations state that DOL can
request an audit of any pending PERM case
“for cause” or in the DOL’s “discretion”.
 If the employer is audited, the employer will
receive an audit letter that lists the
documents that need to be submitted.

21. IMMIGRATION-RELATED AUDITS OVERVIEW
 The audit letter shall permit an employer
thirty (30) days from the date of the letter to
provide additional information or documents.
 If the employer does not respond, the PERM
Labor Certification Application will be denied.

22. IMMIGRATION-RELATED AUDITS OVERVIEW
 It appears clearly to be the case that immigration-related
programs that are undertaken by employers may be subject to
either directed and/or random government audits from the
DHS, DOL or other government agencies.
 Failure to adequately comply with government regulations can
result in penalties.
 The employer’s familiarity with the intricacies of the auditing
and compliance are likely to save considerable time and
money.

23. QUESTIONS?
Please feel free to contact our office if you should have
additional questions:
David_Nachman@visaserve.com
201-670-0006 ext. 100
http://www.visaserve.com
Thank you.