Navigating Government Worksite Audits: What Employers Need to Know

Government agencies have the authority to conduct worksite audits, and understanding how to handle these visits is crucial for employers. Whether the visit is from Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI), or the Fraud Detection and National Security Directorate (FDNS), knowing your rights and responsibilities can make a significant difference in managing the process smoothly.

Understanding the Agencies Conducting Audits

Employers may encounter three main government entities conducting worksite audits:

  • Immigration and Customs Enforcement (ICE) typically visits worksites to investigate or administratively arrest people who are suspected of working without proper immigration status or to investigate or arrest employers who are knowingly employing these individuals.
  • Homeland Security Investigations (HSI) focuses on ensuring compliance with I-9 employment eligibility verification requirements.
  • Fraud Detection and National Security Directorate (FDNS) investigates whether employers comply with the terms outlined in non-immigrant visa petitions including H-1B and L-1 visas, as well as STEM OPT Training Plans and Labor Condition Applications (LCAs).

Exceptions to the 4th Amendment and Employer Responsibilities

Unlike traditional law enforcement searches, many worksite visits fall under exceptions to the 4th Amendment, which normally provides protections against government entry without a warrant. HSI and FDNS audits do not require a warrant, while ICE and law enforcement visits must be accompanied by a judicial warrant signed by a judge. However, if employees or staff grant consent, this overrides the need for a warrant.

If law enforcement forcibly enters the premises, employers must comply. In such cases, it is advisable to document everything, including noting that consent was not given. It is permissible to accompany officers during the visit and to take videos or detailed notes.

What to Expect During a Worksite Visit

A visit may involve a single officer or a team of armed agents, often arriving unannounced. While HSI typically provides a three-day notice before an I-9 audit, other visits, including visits by ICE or FDNS, may occur without prior warning.

How Employers Should Respond:

Front-line staff should immediately ask for the purpose of the visit and request identification from the supervising officer, along with any applicable warrants or subpoenas. The designated company representative and legal counsel should be contacted without delay. If a judicial warrant is presented, it is essential to verify that it is signed by a judge and that it clearly defines the scope of the search, including specific locations within the workplace that may be accessed.

In some cases, agents may present a document that appears to be a warrant but lacks judicial authorization. If this occurs, company representatives must ensure that entry is not granted beyond what is explicitly stated in the warrant.

Managing ICE Visits:

ICE agents must present a judicial warrant before entering the workplace. This document should outline the specific areas and individuals subject to the search. The company’s designated representative should take the lead in communicating with ICE agents and ensuring legal protocols are followed. Key personnel, including business owners, legal counsel, and relevant vendors, should be informed immediately.

If front-line staff, such as receptionists or security personnel, encounter ICE agents, they have the right to deny entry to areas not listed in the warrant. They may also request a delay until the designated company representative arrives. If law enforcement orders employees to move away, they should comply but are encouraged to take detailed notes or video documentation of the visit.

Employee Rights During an ICE Raid:

Employees should be aware of their legal rights:

  • They have the right to remain silent and request an attorney.
  • They are not obligated to consent to searches or provide documents.
  • They do not have to answer questions regarding citizenship, immigration status, or how they entered the United States.

Handling HSI and FDNS Audits

HSI agents do not need a warrant to conduct an I-9 audit, and FDNS agents do not need a warrant before conducting a visa compliance audit. They should, however, be restricted to designated areas within the workplace and not be allowed to freely wander your premises. These audits can be conducted with or without the presence of an employer or company representative such as an attorney. Please note that failure or refusal to cooperate in the audit could result in H-1B petitions being denied. HSI agents typically want to speak with a company representative only, while FDNS officers usually request to speak with both the employer and employee(s).

Best Practices for Employers:

  • Designate a private space for audits to limit agents’ access to the office.
  • Ensure a company representative always accompanies and escorts visiting government officers.
  • Maintain detailed notes or video recordings of the visit for documentation purposes.
  • Immediately notify HR or other designated company representative who will be responsible for communicating with the visiting HSI or FDNS officer(s).
  • Remember to take down the name and contact information of all HSI or FDNS officers.
  • Contact your attorney at McCown & Evans for assistance.

Employee Rights During an FDNS Visit:

Employees may request that a company representative, such as an HR staff member, be present during the audit. They may also ask to conduct discussions in a private area. FDNS officers primarily verify that employers comply with the conditions of non-immigrant visa petitions. Employees should provide accurate answers about their job title, responsibilities, and salary but should not volunteer additional information. Officers should only be given copies of documents, never original records. Employees may ask to follow up regarding any questions that they are unsure of.

FDNS Site Inspector Tasks:

FDNS Site Inspectors will be carrying out the following activities during a site visit:

  • Verify the information, including supporting documents, submitted with the petition;
  • Verify that the petitioning organization exists;
  • Review public records and information on the petitioning organization;
  • Conduct unannounced site visits to where the beneficiary works;
  • Take photographs;
  • Review documents;
  • Interview personnel to confirm the beneficiary’s work location, physical workspace, hours, salary and duties; and
  • Speak with the beneficiary.

Site inspectors record their observations on a Compliance Review Report. The report is then reviewed by their supervisor and the USCIS Vermont or California Service Center to determine whether the petitioner and the beneficiary meet eligibility requirements.

Sample questions for the employer may include:

  • General questions about the employer
  • Questions regarding company immigration policies and practices
  • Detailed questions verifying all information that was included in the visa petition
  • H-1B related questions including the prevailing wage listed on the LCA, salary listed on Form I-129, and statistics regarding the number of H-1B beneficiaries on staff
  • Questions regarding whether an individual is working at a third-party location (for employees of consulting firms)
  • Relationship between the petitioner and its immigration counsel
  • Document requests such as requests for wage reports, foreign national W-2s or paystubs, the beneficiary’s Form I-9, and a company organization chart

Sample questions for the employee may include:

  • Questions regarding job title and responsibilities.
  • Job location
  • Educational background
  • Employment history
  • Questions about petition fee payments
  • Questions regarding family history

Preparing for a Worksite Audit

Proactive preparation is the best way to ensure compliance and minimize disruptions during a government audit.

Steps to Take:

  1. Assign a Primary Representative – A senior manager, HR professional, or legal counsel should be designated to interact with government officials.
  2. Train Front-line Staff – Receptionists and security personnel should be educated about their rights and the different types of audits.
  3. Develop an Escalation Plan – First-line staff should know who to contact immediately if government agents arrive.
  4. Maintain Readily Accessible Immigration Documentation– A designated team member should oversee immigration compliance and maintain organized records.
  5. Review and Audit I-9 Procedures – Regular internal audits should be conducted to ensure compliance, particularly for remote or hybrid employees who may require amendments to visa petitions and LCAs.

Key Compliance Documents

The following are examples of documents that companies should organize and have accessible in case of an audit.

Immigration Documents:

  • Visa petition copies
  • LCAs and LCA Public Access Files
  • STEM OPT Training Plans
  • Any Other Public Disclosure Documents

I-9 Documents:

  • Form I-9 for foreign nationals
  • Documents used to establish work authorization such an I-797 Approval Notice and I-94 Record
  • Passport ID page copy

Other:

  • Copies of W-2s, paystubs, and quarterly wage reports for foreign nationals
  • Company immigration policy copy
  • Organization chart
  • Job description and duties for foreign nationals who are sponsored by company for work authorization
  • Educational document copies for foreign nationals with work visa sponsorship

By staying informed and implementing these best practices, employers can handle government audits effectively while protecting their employees and business operations. Please contact your attorney at McCown & Evans LLP if you would like a copy of the I-9 Emergency Guidance Form.

Reminder Regarding I-9 Employment Verification Requirement

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form. On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

Employers must retain Forms I-9 for three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later. Once the Forms I-9 are securely stored in an electronic format (if chosen), the original paper Forms I-9 may be destroyed. In an event of an investigation by U.S. Immigration and Customs Enforcement (ICE), employers are afforded 3 business days to make original Forms I-9 and associated supporting documents available. Consolidation of I-9s in a centralized location can facilitate delivery of I-9s to ICE.

Employers are encouraged to contact their McCown & Evans LLP attorney if they would like to receive any additional training regarding worksite audits or internal visa and immigration compliance audits.