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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.