Importance of Immigration Self-Audits

Practice Areas

By: Diya A. Mathews

Employers hiring foreign nationals should undertake periodic internal reviews or audits of their immigration and HR processes to ensure that they are compliant with the law. Penalties for non-compliance with immigration laws could be civil and/or criminal in nature. Civil penalties could range from imposition of back wages, fines, debarment from filing applications/petitions to debarment from entering into federal contracts. Criminal penalties include imprisonment of persons deemed to be engaging in a pattern of violations.

No employer, big or small, is immune from an investigation by the regulators. The current administration has announced that 10,000 additional immigration investigators will be hired. Unhappy employees can file anonymous complaints with the regulators, which may trigger an investigation into the employer’s processes and records. An investigation by Immigration and Customs Enforcement (ICE) may uncover substantive and technical errors in the employer’s I-9 records, which could lead to heavy fines and administrative penalties. These investigations may also find areas of concern in the employer’s hiring policies and payroll records, which could be referred to other government agencies for further investigation.

To ensure compliance with the law, employers should consider doing comprehensive immigration self-audits from time to time. When done in conjunction with a qualified immigration practitioner, these audits will help identify common mistakes in employer records and processes. Such an exercise will also provide valuable training to the employer’s HR or immigration team. Penalties may also be mitigated where the regulator sees that an employer has, in good faith, undertaken compliance efforts. As the employer’s Form I-9 records, H-1B Public Access Files and payroll records receive additional scrutiny in the event of an ICE or Department of Labor (DOL) audit, it is advisable to pay special attention to these records. An employer may choose to review all Forms I-9 or a sample of Forms I-9 selected based on neutral and non-discriminatory criteria. Before conducting an audit, an employer should consider the purpose and scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process.

A qualified immigration practitioner can help with all of the above, as well as advise on how to take corrective action in relation to mistakes and errors in records or processes. All too often, employers try to correct mistakes and deficiencies in the I-9s and PAFs after they receive a notice of investigation from the government.  Remember, it’s best to review and take corrective action before the government comes knocking!

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