Immigration compliance generally
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Employment related immigration compliance has been part
of the law since 1986. Initially, the then-INS made sporadic attempts to
enforce the law relating to documentation of the lawful status of employees,
but those efforts were never very serious. Following the 1990 immigration
legislation, the Department of Labor entered the picture with authority to
enforce compliance concerning H1b labor condition attestations. As with the
INS before them, the DOL only made desultory efforts to enforce the law.
In the second term (2004-2008) of the Bush
administration, the government agencies began stepping up enforcement of
immigration compliance regulations. Though their clear emphasis was on
workplace raids, the numbers of audits conducted each year grew
substantially.
With the start of the Obama administration, we are
seeing yet another change in enforcement tactics. Both the Department of
Labor (DOL) and the Immigration and Customs Enforcement Bureau (ICE) have
announced changes in their policies. Both agencies have added personnel to
their enforcement divisions. Both have eschewed raids in favor of audits.
Both have said that they intend to bring criminal charges against employers
in particularly egregious cases as a stronger deterrent to those who refuse
or otherwise fail to comply with existing immigration laws.
The two principal areas where employers can and should
expect to undergo government audits are I-9
compliance and
H1b compliance. The first pertains to all employers in the United States
– irrespective of the makeup of their workforce. The second pertains to H1b
visa temporary workers. The consequences for employers failing to comply
with either program are severe.
