The ICEman Cometh: How to Avoid Being Put On the 'Spot'

Concerns about domestic security post-9/11, fear that immigrants are moving here to take jobs away from “real” Americans, worries that foreign workers trained here will then “offshore” their positions … all of these factors have nudged the federal government to more strictly scrutinize U.S. corporations' use of foreign-born talent.

The cornerstone of this scrutiny is the Worksite Enforcement Program, administered by the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE). This program is often referred to as the “spot visit program.”

To ensure they are able to meet government requirements while protecting the interests of their companies and the privacy rights of all employees, human resources professionals should have a strong working knowledge of the Worksite Enforcement Program. More specifically, they should understand the basic workings of the program, why it was put in place, what are a company's rights and obligations, how this program links with other government enforcement programs as well as basic tips on what to do when the government knocks on the door.

Details on the Enforcement Program Are 'Spotty'

Prior to 9/11, once a foreign-born worker secured entry into the U.S., there existed fairly loose oversight of his or her activities. Provided the worker abided by the terms of his work visa, he typically avoided any sort of formal government intervention regarding his professional endeavors.

Especially in the 1990s, when the U.S. economy expanded rapidly and strong demand for skilled professional and technical talent existed, U.S. companies would frequently apply for a foreign worker to focus on a specific set of activities, but once in the U.S. these duties would expand and/or change. While these changes technically required notification to the Immigration and Naturalization Service (INS) and/or the Department of Labor (DOL), these discrepancies were seldom noticed and very infrequently resulted in fines.

Since the Department of Homeland Security was formed, the landscape has dramatically changed. Heightened concern regarding information available in “sensitive” industries, combined with technology improvements that allow government agencies to compare which tasks a foreign worker is performing vs. those which the company applied for him to perform, have resulted in a new dimension to all steps of immigration processes, including ICE's Worksite Enforcement Program.

The Program includes ICE visits to hundreds of U.S. corporations each year. These visits may be prompted by a workforce complaint, or may be unprompted. Understandably, ICE officials provide precious little detail about how they are selecting companies for visits, which industries, geographies and other demographics they are focusing on, and what specific information they are requesting of company officials.

What To Do When the ICEman Cometh

While every visit is unique, there are a few common items ICE officials will request when they visit a company. These include the I-9 (employment eligibility verification) form for all foreign nationals ' sometimes for every employee of the company. ICE may also request other documents to determine employees' legal status, including immigration filings and required paperwork for the public access files ' especially for H-1B workers (DOL audits also fully review the Labor Condition Applications (LCA) files to verify compliance with the posting and file maintenance rules). Investigations can also inquire into whether foreign workers are focused on precisely the projects for which they gained entry to the U.S.

The prospect of an ICE visit seems daunting, but it is definitely manageable. First, except for raid situations (where ICE has reason to believe the company has many unauthorized workers), many worksite compliance investigations start with a letter to the company. Second, even if ICE officers come unannounced to the company, they will usually allow the company more than three days to produce the requested documents.

If ICE officials decide to visit a company, it rarely resembles the “60 Minutes” scenario with Mike Wallace chasing executives down a hall with a microphone. Typically, ICE officials are very polite and simply ask to see certain records from the company. When this happens, members of the HR Department should remember:

• Employers almost always have at least 72 hours to produce documents requested;
• Company representatives should offer to deliver the requested documents to the ICE office, both for the ICE officials' convenience and to avoid raising concerns among employees at the company's worksite; and
• Officials often request a range of items. Depending on which documents your company stores electronically and how they are stored, some items might be easier for you to obtain than others. If the documentary request seems overly cumbersome or illogical, politely explain to the officers the amount of time the company will need for document compilation, and explore possible alternatives at the outset. There may be a range of evidence you can present from payroll and other records to help the officials perform their verification duties.

Preparation Is the Best Insurance Policy

Preparation is the key to responding effectively. Human resource professionals should conduct an internal audit of documents ICE officials are most likely to request and ensure all are easily accessible and current. In addition to the I-9s, these include the LCAs related to H-1B visa cases and other immigration-related paperwork, such copies of the employee's Form I-94, a document the DHS uses to track the entry and departure of foreign nationals. It's imperative to remind foreign national employees repeatedly that, every time they leave and re-enter the U.S., they should submit their most recent Form I-94 either to the human resources department or to the immigration law firm. Any system will work, as long as it's consistent.

In addition to ensuring that employees' visas and Forms I-94 do not expire, human resource professionals must carefully monitor any changes to job duties, location and pay, since these changes might trigger a requirement to file an amended LCA with the DOL and/or visa petition with the CIS. Other changes may require a simple note to the file, or a different LCA to be prepared and posted in a new jobsite. Many changes require no action at all, but the employees and managers typically can't discern these job shifts from the ones that call for notifying federal agencies. Once more, as long as a consistent system is in place to collect and quickly evaluate data on these job changes, employees can be kept safe.

Rule of thumb: Companies need to notify the appropriate agency whenever there's been a meaningful change to a statement the company made on a form under penalty of perjury. This includes everything on the Form I-129 Petition for the Visa, or the LCA Form, including the place of work, the job hours and the minimum salary (so if the total pay decreases, file an amended LCA and petition; if compensation increases, there's seldom action needed).

Tip: Companies that need more flexibility in employees' hours or days worked ' such as those that may have shutdown days or may seek to shift schedules ' should discuss with immigration counsel the possibility of filing future petitions to reflect hourly wages with a weekly range of hours, rather than a set monthly or annual salary that still appear on most petitions filed. This could reduce the number and cost of amended petitions, while keeping employees and the company safe.

Sensitivities About 'Sensitive' Industries

The final arena to watch for ramped-up inquiries is in “export control licenses” for foreign nationals. A principal government concern over foreign worker activities is knowledge she acquires and then takes back to her home country. This knowledge is considered a “deemed export,” and just like any tangible product, our government attempts to manage the migration of this knowledge out of the country.

Thus, export control licenses are needed for foreign workers from specific countries (the list is longer than most people imagine, including U.S. allies such as China, India and Russia) who may have access to enumerated technologies (the Technology Alert List is expanding to include a wide range of popular fields, from telecommunications to biochemistry). Counter-intuitive as it may be, the U.S. requires a license for these individuals to engage in work even within the U.S.

Complicating this scenario further is the moving target of what information is “sensitive.” Just as the quality of the formal U.S. relationship with each country around the world varies, so does the definition of a sensitive industry. For example, centrifuges, an important machine to develop pharmaceuticals is not considered a sensitive product when exported to the United Kingdom. However, centrifuges are also utilized in the development of many kinds of weapons, and therefore is a “sensitive” product when being exported to less-friendly nations, such as North Korea.

This is an area of law that has been relatively unheeded by companies and under-enforced by federal agencies … until recently. Penalties imposed by the Bureau of Industry and Security (BIS) for export control violations quadrupled to $5.2 million over the past 3 years reported. In late 2003, a company in San Jose was smacked with criminal charges, in addition to fines.

Pearl Law Group believes many companies' HR and legal departments are largely unaware of the deemed export control license requirement. This opinion is based on findings in a General Accounting Office report and on government statistics over the past several years: nearly 50,000 people annually have received H-1B visas from countries requiring export licenses for many fields; yet, the number of deemed export control licenses totals only in the hundreds.

Enhancements to the technology used by DHS and collaborating federal agencies (FBI, State Department, etc.) allows these agencies to more readily identify companies' failures to obtain the requisite export control licenses. Many of the larger companies have Export Control Departments, but most U.S. companies haven't a clue about this requirement, and should get an evaluation of whether licenses are needed for specific individuals.

Putting (and Keeping) It All Together

It would take a super brain to keep track of all of these requirements ' from the employee's visa expiration dates and job changes to the LCA postings and license requirements ' for all foreign workers. Perhaps the most important step HR departments can take to ensure safety is to acquire or develop a software system for creating and tracking important documents and processes followed, ensuring there is adequate computer system backup in case of a malfunction or natural disaster. Part of this system should include procedures for purging out-of-date records to avoid confusion.

There are a few software programs on the market now that monitor and report on required visa extensions, I-9 revalidations, LCA and Labor Certification postings, and many other variables. The best programs will link with the CIS, DOS, SEVIS and other government websites (for status-checking and e-filing of forms), and with the HR Information System such as the company's Oracle-, PeopleSoft- or SAP-based information. This will eliminate duplicate data entry between the immigration software module and the HRIS, and will also allow for notifications that could affect a foreign national's legal status, such as changes to job duties, location, compensation or home address (for instance, all non-citizens must promptly report to the DHS changes in home address via Form AR-11, available via http://www.cis.gov/).

Many commentators have debated the merits of imposing stringent controls on the same foreign talent that has allowed U.S. economy to thrive ' the talented emigres who help make America the world's innovation engine. What is not debatable is that these controls are here to stay, given the security challenges we face. Human resources professionals must become and remain current with regulations developed by a wide range of government bodies, to fully protect their companies from legal and financial exposure. While the prospect of an ICE visit can be chilling, adequate foresight and preparation can help ensure a safe landing.

Concerns about domestic security post-9/11, fear that immigrants are moving here to take jobs away from “real” Americans, worries that foreign workers trained here will then “offshore” their positions … all of these factors have nudged the federal government to more strictly scrutinize U.S. corporations' use of foreign-born talent.

The cornerstone of this scrutiny is the Worksite Enforcement Program, administered by the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE). This program is often referred to as the “spot visit program.”

To ensure they are able to meet government requirements while protecting the interests of their companies and the privacy rights of all employees, human resources professionals should have a strong working knowledge of the Worksite Enforcement Program. More specifically, they should understand the basic workings of the program, why it was put in place, what are a company's rights and obligations, how this program links with other government enforcement programs as well as basic tips on what to do when the government knocks on the door.

Details on the Enforcement Program Are 'Spotty'

Prior to 9/11, once a foreign-born worker secured entry into the U.S., there existed fairly loose oversight of his or her activities. Provided the worker abided by the terms of his work visa, he typically avoided any sort of formal government intervention regarding his professional endeavors.

Especially in the 1990s, when the U.S. economy expanded rapidly and strong demand for skilled professional and technical talent existed, U.S. companies would frequently apply for a foreign worker to focus on a specific set of activities, but once in the U.S. these duties would expand and/or change. While these changes technically required notification to the Immigration and Naturalization Service (INS) and/or the Department of Labor (DOL), these discrepancies were seldom noticed and very infrequently resulted in fines.

Since the Department of Homeland Security was formed, the landscape has dramatically changed. Heightened concern regarding information available in “sensitive” industries, combined with technology improvements that allow government agencies to compare which tasks a foreign worker is performing vs. those which the company applied for him to perform, have resulted in a new dimension to all steps of immigration processes, including ICE's Worksite Enforcement Program.

The Program includes ICE visits to hundreds of U.S. corporations each year. These visits may be prompted by a workforce complaint, or may be unprompted. Understandably, ICE officials provide precious little detail about how they are selecting companies for visits, which industries, geographies and other demographics they are focusing on, and what specific information they are requesting of company officials.

What To Do When the ICEman Cometh

While every visit is unique, there are a few common items ICE officials will request when they visit a company. These include the I-9 (employment eligibility verification) form for all foreign nationals ' sometimes for every employee of the company. ICE may also request other documents to determine employees' legal status, including immigration filings and required paperwork for the public access files ' especially for H-1B workers (DOL audits also fully review the Labor Condition Applications (LCA) files to verify compliance with the posting and file maintenance rules). Investigations can also inquire into whether foreign workers are focused on precisely the projects for which they gained entry to the U.S.

The prospect of an ICE visit seems daunting, but it is definitely manageable. First, except for raid situations (where ICE has reason to believe the company has many unauthorized workers), many worksite compliance investigations start with a letter to the company. Second, even if ICE officers come unannounced to the company, they will usually allow the company more than three days to produce the requested documents.

If ICE officials decide to visit a company, it rarely resembles the “60 Minutes” scenario with Mike Wallace chasing executives down a hall with a microphone. Typically, ICE officials are very polite and simply ask to see certain records from the company. When this happens, members of the HR Department should remember:

• Employers almost always have at least 72 hours to produce documents requested;
• Company representatives should offer to deliver the requested documents to the ICE office, both for the ICE officials' convenience and to avoid raising concerns among employees at the company's worksite; and
• Officials often request a range of items. Depending on which documents your company stores electronically and how they are stored, some items might be easier for you to obtain than others. If the documentary request seems overly cumbersome or illogical, politely explain to the officers the amount of time the company will need for document compilation, and explore possible alternatives at the outset. There may be a range of evidence you can present from payroll and other records to help the officials perform their verification duties.

Preparation Is the Best Insurance Policy

Preparation is the key to responding effectively. Human resource professionals should conduct an internal audit of documents ICE officials are most likely to request and ensure all are easily accessible and current. In addition to the I-9s, these include the LCAs related to H-1B visa cases and other immigration-related paperwork, such copies of the employee's Form I-94, a document the DHS uses to track the entry and departure of foreign nationals. It's imperative to remind foreign national employees repeatedly that, every time they leave and re-enter the U.S., they should submit their most recent Form I-94 either to the human resources department or to the immigration law firm. Any system will work, as long as it's consistent.

In addition to ensuring that employees' visas and Forms I-94 do not expire, human resource professionals must carefully monitor any changes to job duties, location and pay, since these changes might trigger a requirement to file an amended LCA with the DOL and/or visa petition with the CIS. Other changes may require a simple note to the file, or a different LCA to be prepared and posted in a new jobsite. Many changes require no action at all, but the employees and managers typically can't discern these job shifts from the ones that call for notifying federal agencies. Once more, as long as a consistent system is in place to collect and quickly evaluate data on these job changes, employees can be kept safe.

Rule of thumb: Companies need to notify the appropriate agency whenever there's been a meaningful change to a statement the company made on a form under penalty of perjury. This includes everything on the Form I-129 Petition for the Visa, or the LCA Form, including the place of work, the job hours and the minimum salary (so if the total pay decreases, file an amended LCA and petition; if compensation increases, there's seldom action needed).

Tip: Companies that need more flexibility in employees' hours or days worked ' such as those that may have shutdown days or may seek to shift schedules ' should discuss with immigration counsel the possibility of filing future petitions to reflect hourly wages with a weekly range of hours, rather than a set monthly or annual salary that still appear on most petitions filed. This could reduce the number and cost of amended petitions, while keeping employees and the company safe.

Sensitivities About 'Sensitive' Industries

The final arena to watch for ramped-up inquiries is in “export control licenses” for foreign nationals. A principal government concern over foreign worker activities is knowledge she acquires and then takes back to her home country. This knowledge is considered a “deemed export,” and just like any tangible product, our government attempts to manage the migration of this knowledge out of the country.

Thus, export control licenses are needed for foreign workers from specific countries (the list is longer than most people imagine, including U.S. allies such as China, India and Russia) who may have access to enumerated technologies (the Technology Alert List is expanding to include a wide range of popular fields, from telecommunications to biochemistry). Counter-intuitive as it may be, the U.S. requires a license for these individuals to engage in work even within the U.S.

Complicating this scenario further is the moving target of what information is “sensitive.” Just as the quality of the formal U.S. relationship with each country around the world varies, so does the definition of a sensitive industry. For example, centrifuges, an important machine to develop pharmaceuticals is not considered a sensitive product when exported to the United Kingdom. However, centrifuges are also utilized in the development of many kinds of weapons, and therefore is a “sensitive” product when being exported to less-friendly nations, such as North Korea.

This is an area of law that has been relatively unheeded by companies and under-enforced by federal agencies … until recently. Penalties imposed by the Bureau of Industry and Security (BIS) for export control violations quadrupled to $5.2 million over the past 3 years reported. In late 2003, a company in San Jose was smacked with criminal charges, in addition to fines.

Pearl Law Group believes many companies' HR and legal departments are largely unaware of the deemed export control license requirement. This opinion is based on findings in a General Accounting Office report and on government statistics over the past several years: nearly 50,000 people annually have received H-1B visas from countries requiring export licenses for many fields; yet, the number of deemed export control licenses totals only in the hundreds.

Enhancements to the technology used by DHS and collaborating federal agencies (FBI, State Department, etc.) allows these agencies to more readily identify companies' failures to obtain the requisite export control licenses. Many of the larger companies have Export Control Departments, but most U.S. companies haven't a clue about this requirement, and should get an evaluation of whether licenses are needed for specific individuals.

Putting (and Keeping) It All Together

It would take a super brain to keep track of all of these requirements ' from the employee's visa expiration dates and job changes to the LCA postings and license requirements ' for all foreign workers. Perhaps the most important step HR departments can take to ensure safety is to acquire or develop a software system for creating and tracking important documents and processes followed, ensuring there is adequate computer system backup in case of a malfunction or natural disaster. Part of this system should include procedures for purging out-of-date records to avoid confusion.

There are a few software programs on the market now that monitor and report on required visa extensions, I-9 revalidations, LCA and Labor Certification postings, and many other variables. The best programs will link with the CIS, DOS, SEVIS and other government websites (for status-checking and e-filing of forms), and with the HR Information System such as the company's Oracle-, PeopleSoft- or SAP-based information. This will eliminate duplicate data entry between the immigration software module and the HRIS, and will also allow for notifications that could affect a foreign national's legal status, such as changes to job duties, location, compensation or home address (for instance, all non-citizens must promptly report to the DHS changes in home address via Form AR-11, available via http://www.cis.gov/).

Many commentators have debated the merits of imposing stringent controls on the same foreign talent that has allowed U.S. economy to thrive ' the talented emigres who help make America the world's innovation engine. What is not debatable is that these controls are here to stay, given the security challenges we face. Human resources professionals must become and remain current with regulations developed by a wide range of government bodies, to fully protect their companies from legal and financial exposure. While the prospect of an ICE visit can be chilling, adequate foresight and preparation can help ensure a safe landing.