Coherent policies and programs designed to effectively manage and control employment needs has become integral to how businesses complement and support value-added economic policies, minimize wage competition and the displacement of domestic workers, and map out compliance and ethical risks.
Worksite Compliance
U.S. employers rely on a global pool of workers for innovation, research and development, and essential labor that keeps our economy moving. But, hiring a foreign national involves adhering to complex rules and regulations, and may require specific procedures. Penalties for non-compliance can be onerous and inflexible.
Outsourcing and third-party vendor engagement must also undergo appropriate due diligence and routine monitoring for embedded immigration violations which can adversely impact an otherwise compliant business.
Adoption of a thoughtful and workable U.S. corporate immigration policy is essential to informing senior management and stakeholders when recruiting and hiring foreign nationals. It provides uniformity and clarity, reduces potential for lawsuits and unwelcome government audits, fines and penalties.
We have years of experience advising employers, institutions and multinational corporations concerning immigration compliance-related matters and immigration governance programs in support of responsible corporate behavior and defined accountability standards.
Frequently Asked Questions
What is worksite compliance?
Worksite compliance refers to USCIS’s efforts to verify information in certain visa petitions. In 2009, USCIS rolled out the Administrative Site Visit and Verification Program. Under this program, immigration officers in the Fraud Detection and National Security Directorate (FDNS) make unannounced site visits to collect information to ensure compliance.
Who is subject to worksite compliance?
Every U.S. employer, regardless of size, industry, or type, is required by law to comply with U.S. immigration rules and regulations when employing U.S. workers. U.S. workers are U.S. citizens, lawful permanent residents, refugees, and asylees who have valid work permits, and temporary visa holders authorized to work in the U.S.
In 2019, FDNS had conducted worksite visits on the following types of petitions: Special immigrant religious worker petitions; H-1B nonimmigrant temporary visas; L-1 nonimmigrant intracompany transferee executive or manager visas; and EB-5 immigrant investor program visas.
How can employers ensure they are compliant?
Some of the most common areas of immigration-related compliance that employers must be aware of include the following:
- Employment Eligibility Verification: all employees newly hired after November 6, 1986 must satisfy identification and employment eligibility verification requirements by completing form I-9 and producing acceptable documentation for examination by the employer.
- Labor Condition Application: the Labor Condition Application (LCA) is a critical component to the employment of H-1B, H-1B1, and E-3 foreign nationals. It contains essential representations concerning the job, the proposed wages, working conditions, and worksite location offered to the worker. Enforcement of the LCA representations is possible by the employers attestations (statements made under penalty of perjury). Because these representations operate to protect U.S. workers and ensure that foreign nationals are not taken advantage of by the U.S. employer, the terms of the LCA are strictly enforced.
- Record Retention: immigration laws require accurate immigration and other essential business records be maintained and safeguarded in compliance with applicable laws and regulations. Public Access Files (created in connection with H-1B petitions), Labor Condition Applications, Labor Certification recruitment records, I-9s, and wage and benefits records must all be retained by the employer at the worksite or principal place of business in the U.S. for varying periods of time depending on the document type as required by applicable law. For specific rules on record retention, please contact us.
What do site visits entail?
FDNS randomly selects petitioners for site visits. A site visit involves a routine regulatory inspection that may result in critical findings of non-compliance. While USCIS states that cooperation with site visits are voluntary and that employers and employees may choose not to participate in a site visit, compliance is highly advised given that a refusal to cooperate may lead to a finding of non-compliance on the part of the employer and a Notice of Intent to Revoke the petition.
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Would you like to discuss a worksite compliance matter? Our knowledgeable team is here to help. Reach out today to schedule a consultation.
