On U.S. Immigration and Customs Enforcement’s (ICE) website, multiple articles confirm a significant number of worksite enforcement arrests are currently being made. In the news, the narrative is simple: A surge in I-9 audits is probable — if not already underway — and heightened scrutiny is expected under the new administration as compliance takes center stage for every organization.

As we anticipate these audits and investigations to ramp up in the next few years, it’s beneficial for employers to have clear expectations about why these investigations occur, what happens during them and how they can prepare.

What is a USCIS site visit? 

U.S. Citizenship and Immigration Services 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.”

Under the Administrative Site Visit and Verification Program, USCIS randomly selects petitions for site visits both before and after the petition is adjudicated. 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.

What should employers do to prepare for a USCIS site visit? 

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 guide on how to prepare your organization for USCIS site visits, including protocol for front-desk staff and foreign national employees.

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What is a Form I-9 audit?  

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.

What results from a Form I-9 audit?  

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.

Get step-by-step guidance for site visits 

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 equipped and ready to help.

Download our guide on how to prepare your organization for USCIS visits, including recommended steps for reception and foreign national employees when receiving an FDNS official, and potential questions FDNS officials may ask.

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