Compliance: Helping Employers Meet Their Obligations

Immigration enforcement has been tied to national security concerns in this post 9-11 world, which has caused a shift in the immigration focus to an “enforcement first” mantra as our nation’s immigration policy. The U.S. government is stepping up enforcement with increased workplace investigations and regular raids of allegedly noncompliant worksites. These enforcement efforts are not limited to attempts to locate undocumented workers; the government is also targeting and investigating employers who are believed to be in violation of the requirements of employment-based immigration sponsorship. Many of these requirements are intended to protect the U.S. workforce and involve compensation and other conditions of employment.

One particular area of concern is for employers who sponsor H1B temporary professional workers. For these workers, businesses must be aware of and strictly adhere to the U.S. Department of Labor (DOL)’s rules for the Labor Condition Application (LCA) program. Employers should be aware of events that can trigger DOL audits or investigations of their compliance with LCA program rules, as well as the procedures followed by the DOL during investigations. These investigations are not limited to the DOL. They may also be conducted by the USCIS, as well as the Department of State (DOS). Employers are well-advised to conduct internal audits to remedy potential problems, and develop systems for strict compliance.

The DOL also audits compliance with the PERM labor certification program, for sponsorship of permanent employees. The PERM program is part of the Permanent Residence or “green card” process. Employers must have and maintain documentation of the attestations made in the PERM application, in the event of an audit.

All corporations must comply with the complex rules regarding Employment Eligibility Verification (Form I-9). This form must be completed by all newly-hired workers regardless of citizenship and nationality. There are also re-verification requirements where the employee’s authorization to work is not permanent. These rules are enforced by the U.S. Immigration and Customs Enforcement (ICE). Employers should be aware of events and situations that might trigger ICE investigations of company compliance with verification requirements. One of these triggering events is a DOL audit for LCA compliance. Employers should engage proactively in avoiding any problems in this area, and fixing any existing problems. The government must follow specific procedures to prosecute employers; corporations can utilize elements of the regulatory requirements to defend their interests. Proactive tools, such as internal audits, can address problems and protect employers in case of investigation.

The backbone of a healthy corporate immigration policy is ensuring a company’s compliance with regulations designed to protect its U.S. workers and ensure that its workforce is made up of individuals lawfully authorized to work in the United States.

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