ILG Labor Condition Application and Form I-9 Related Services
Furthering the trend of heightened governmental scrutiny into foreign national employment, USCIS recently announced an organizational restructure that establishes a new Fraud Detection and National Security Directorate. As stated by USCIS Director Alejandro Mayorkas, "This change reflects our prioritization of our anti-fraud and national security responsibilities and will bring greater focus to them."
As a result, employers are increasingly subject to governmental audits of their I-9 or Labor Condition Application (LCA) certification forms and compliance by either the Department of Labor (DOL) or USCIS/Department of Homeland Security (DHS), with or even sometimes without prior notice. DHS may review I-9 and LCA forms pursuant to (1) Risk Assessment fraud studies, conducted by USCIS and ICE post-approval on a random basis in order to study profiles on fraud; (2) Targeted Site Visits, conducted with prior notice where there is suspicion of fraud; or (3) Administrative Site Visits for religious and H-1B workers, conducted on a random basis in order to verify the legitimacy of the employer organization, beneficiary’s employment, and actual wages paid. DOL conducts audits with prior notice in order to verify that employers are abiding by all employment regulations, including LCA and I-9 requirements.
LABOR CONDITION APPLICATION (LCA) COMPLIANCE
As part of the H-1B petition process, each US employer obtains a certification of a labor condition application (LCA) from DOL. The LCA includes certain attestations, including that the employer will pay a wage no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the same geographic area. A violation of the LCA attestations can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.
In anticipation of potential governmental inspections, ILG provides extensive LCA compliance services to ensure that employers will pass such audits. Services typically include onsite review by expert ILG staff of the employer’s private and public access foreign national employee files, checking for proper LCA form completion, appropriate file maintenance and organization, and sufficient supporting document retention. These elements are critical for adequately responding to DOL and DHS requests for review within the short time frame provided. ILG further offers trainings for Human Resources personnel. Finally, in the event of an actual audit, ILG staff is available to assist the employer onsite in preparing the requested documentation and corresponding with DOL or DHS.
Employers are required to complete, update and retain for a certain period of time properly verified employment eligibility verification, commonly known as I-9 forms, for every employee. Employers must also adhere to certain I-9 policies and procedures in the recruitment and hiring process, in order to avoid violating anti-discrimination laws. Penalties for failure to comply with I-9 requirements and regulations include monetary fines of between $110 to over $1,000 for each violation, depending upon the size of employer’s business, good faith, seriousness of violation, whether the employee is actually authorized, and the history of the employer’s violations. Injunctions may also be imposed against discriminatory practices.
ILG is available to complete I-9 self-audits with employers to prepare for potential government site visits. As with LCA audits, expert ILG staff conducts an onsite review of the employer’s I-9 forms to ensure that they are properly completed, organized, and retained. An I-9 compliance training is also provided. ILG further reviews an employer’s recruitment and hiring policies for possible discriminatory practices. In the event of an actual governmental audit, ILG staff is available to assist onsite in preparing the employer’s response.
Finally, ILG offers long term consulting and maintenance services for I-9 compliance, including recommendations for process improvement, implementation of remote hiring processes, foreign national re-verification, yearly self-audits, and Human Resources trainings.
If you are an employer who has been notified of a DOL or DHS audit, contact your immigration ILG attorney immediately.