WORKSITE INSPECTION PROTOCOL: A GUIDE FOR US EMPLOYERS OF FOREIGN NATIONALS

By: Nadine Chen

United States government inspectors from the Department of Homeland Security (DHS), Department of Labor (DOL), and Department of Justice (DOJ) may visit your workplace to investigate allegations or verify your foreign national workers’ employment authorization and employment details. Employers should have an appropriate protocol in place to ensure they pass these inspections.

1. Immediately notify your immigration counsel of a site visit. Counsel participation is permitted either in person or by phone.
2. Front desk employees (or any employee that greets the inspector) should:
   • Ask the inspector to provide a business card and show their identification card.
   • Take note of the inspector’s name and identification, contact information, the reason for their visit, the government agency they represent, and the date and time of the inspection. This can be done in a visitor’s log if the company uses one.
   • Ask the inspector to wait in the lobby until the designated person arrives. The designated person is an employee whose responsibilities include responding to government site visits. They should be knowledgeable of the employer’s immigration program and the conditions under which the beneficiaries are employed.
3. Any inquiries should be directed to the designated person. If the matter concerns a particular employee, only the employee, the employee’s supervisor, or the designated person should communicate with the inspector. All other employees should advise the inspector that they are not authorized to speak on behalf of the employer. The designated person should accompany employees in the inspector’s interviews.
4. Keep a record of all information provided during the visit, including all responses to questions, employees interviewed, locations visited, and documentation provided. If the inspector takes any photos, request a copy. Unless you are 100% confident about the information requested, ask for clarification and offer to follow-up after the visit with a response.
5. STEM OPT (Science, Technology, Engineering, and Mathematics Optional Practical Training) employers should ensure sufficient resources to maintain the training program and be ready to provide evidence used to assess wages of similarly situated workers. Both the petitioner and the student should properly review Form I-983 and be prepared to discuss all details of the training program.
6. During Fraud Detection and National Security Directorate (FDNS) site visits for H-1B or L-1 employees, beneficiaries, their supervisors, and organizational representatives may be interviewed to confirm the details of the beneficiary’s employment. Participation in the site visit is voluntary but cooperation is recommended. Both the petitioner and beneficiary should be familiar with the petition and verify all information therein.
7. Public Access Files (PAF) in compliance with Labor Condition Application (LCA) requirements should be kept at either the employer’s principal place of business or at the foreign national’s worksite. Except for payroll records (which must be maintained for three years from the date of creation and may be retained separately from the PAF to maintain the privacy of employer and employee data), the PAF must be kept for at least one year after the last date that all foreign national employees are employed under the LCA. If the employer is H-1B dependent or willful violator and the LCA covers non-exempt employees, employers should be prepared to provide evidence of recruitment of US workers prior to filing the LCA and documentation concerning the termination and displacement of US workers 90 days before and 90 days after filing the LCA.
8. Program Electronic Review Management (PERM) audit files should be retained for at least five years from the date of filing each Form ETA 9089, regardless of employment termination and whether/when the employee becomes a permanent resident. DOL does not mandate a method of retention; PERM files need not be kept on-site but must be readily accessible. In addition to PERM audit files, it is best practice to keep a running list of all PERM applications filed within the last two years, as well as all I-140 petitions filed based on approved PERM applications.
9. Form I-9 government audits are typically initiated through service of a Notice of Inspection (NOI). Ensure that it is properly received and reported through the appropriate internal channels for service of legal process for immediate attention. Do not waive the notice period. Employers are given up to three days to present the Forms I-9 (with E-Verify case summaries, if enrolled) to the agent leading the inspection. During this time, work with immigration counsel to reduce the risk of penalties by reviewing the I-9s of all active employees hired or re-hired on or after November 6, 1986 and creating a revisions log for every correction. Since several government agencies have the authority to inspect I-9 files, they should be kept in a separate location from personnel records to limit government access to unrelated files.
10. Adopt proactive measures to minimize liability in the event of an audit, such as conducting periodic internal/third-party audits, maintaining proper organization and storage systems and retention policies for employee records, keeping up-to-date organizational charts, and mandating regular immigration compliance training for all employees, with supplemental training for all I-9 verifiers.

CONCLUSION

Site visits don’t have to be difficult. Prepare your workplace in advance for worksite visits and audits. Work closely with your Chugh, LLP legal team to make sure you comply with employment and immigration law, and get your staff trained to handle a site visit before one occurs.