Worksite compliance matters: FAQ on site visits and I-9 audits

U.S. Citizenship and Immigration Services (USCIS) has the authority to verify information included on H-1B and L-1 petitions through telephonic and electronic methods, and through on-site inspections of worksites, also known as “site visits.”

The occurrence of a site visit does not necessarily reflect a suspicion of fraud or other concerns. The purpose is to confirm the information that companies provide in immigration petitions for sponsored foreign national employees and to assess compliance with immigration statutes and regulations.

While some site visits are announced in advance, by law, representatives from USCIS’ Fraud Detection and National Security (FDNS) can arrive unannounced at any worksite listed on the H-1B or L-1 petition. Individuals normally responsible for the company’s visitor intake should be made aware of the specific procedures for FDNS site visits. There should be a defined protocol and a list of individuals who should be contacted to handle an FDNS site visit.

Download our step-by-step guide on how to prepare a defined protocol for your organization.

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A Form I-9 audit is initiated when the ICE Homeland Security Investigations (HSI) serves the employer a written Notice of Inspection (NOI). The NOI generally includes:

• The time and date the agency expects to conduct the inspection
• Contact information for the ICE agent who is in charge of the inspection
• Which documents will be inspected
• Deadline by which the employer must respond to the NOI

HSI may also request that the employer provide supporting documentation, which may include but is not limited to: a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation and business licenses. Employers have at least three business days to produce the I-9 forms and supporting documents requested in the NOI.

During the Form I-9 audit, HSI will be looking for both technical and substantive violations. Technical violations are typically procedural errors that can be corrected by the employer within 10 business days of the violation being reported by HSI.

Substantive violations are more serious and include failure to complete the Form I-9, failure to complete the Form I-9 within three business days, accepting fraudulent documents and failing to properly verify the documents. These errors are not allowed to be corrected.

After conducting the Form I-9 audit, the auditing agency will notify the employer of its findings in writing. A Notice of Inspection Results means the organization was compliant. If any violations were identified during the audit, an employer may receive one of these notices:

• Notice of Suspect Documents: An employee’s documentation does not match the employee, or the documentation is not valid for employment.
• Notice of Discrepancies: The agency was unable to identify an employee’s eligibility to work in the United States.
• Notice of Technical or Procedural Failures: An error was identified on at least one form and the employer has 10 business days to make corrections.
• Warning Notice: Violations were identified, but the employer is expected to comply in the future.
• Notice of Intent to Fine: Fines may be issued for substantive violations, uncorrected technical or procedural errors, known hire violations and/or continuing to employ unauthorized employees.

Whether your organization wants to conduct an internal Form I-9 audit as a precautionary measure, update its site visit protocol or finds itself in the middle of an investigation, BAL is ready to help.

Download our step-by-step guide on how to prepare your organization for USCIS visits with recommendations for reception and foreign national employees when receiving government officials, and potential questions government officials may ask.

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Written by Eileen Lohmann and Kelli Duehning.