Immigration in the Workplace: The Government's Renewed Focus on Immigration Enforcement Means That Companies in All Industries Need to Be Prepared for Inevitable Compliance Audits

Article excerpt

With a constant stream of impending immigration reform and frequent, high-profile congressional debates, it is easy to forget the daily realities of immigration compliance practices and related enforcement that should concern companies of all sizes and industry affiliation. Unfortunately, this comes at a price. Immigration status may be buried under multiple corporate interests, but it can bring operations to a halt and cause not only significant fines, but public relations disasters, unwanted attention from multiple government agencies and severe reputational damage.

Am I at Risk?

"Our company does not employ any foreign workers, everyone is born and bred in the United States." "Why would we worry about immigration if we do not sponsor any work permits?" "We are too small and too busy to think about this--immigration is for the Microsofts of this world." Some of the most worrisome discussions for immigration lawyers start with these statements. Why should a busy executive or risk manager be concerned with immigration compliance when there are many more pressing daily worries? The answer is simple: all U.S. employers are required to follow certain, very specific immigration compliance steps, and paperwork violations alone may render substantial fines, depending on the size of the company and the nature of the malfeasance. Immigration audits are quickly becoming a convenient and readily available source of government revenue and no one wants to contribute to this particular revenue stream.

A few years ago, businesses could predict the likelihood of an immigration audit fairly accurately. Large manufacturing companies, factories employing manual laborers, and construction and hospitality businesses were likely and easy targets. Indeed, these "high risk" industries were responsible for keeping the limited resources of enforcement agencies reliably tied up. Others paled at the high fines levied against these corporations and convinced themselves that they were unlikely targets for similar treatment.

This changed in recent years, however, as the government started taking a new approach. Predictable "problem industries" no longer bear the brunt of enforcement efforts, and companies can no longer enjoy a comfortable sense of invincibility. The enforcement universe has changed and, while government immigration audit costs appear to be decreasing, related business costs are steadily on the rise--and judging by the U.S. immigration and Customs Enforcement (ICE) annual fines reports, related revenues are increasing as well. Your odds of an audit grow daily, and the question now is not "if" ICE will show up at your door, but "when."

[ILLUSTRATION OMITTED]

The good news is, with a certain amount of preparation and preventive measures, the inevitable disruptions of an audit can be minimized, risks assessed and weighed, and remedial measures taken well in advance of ICE's visit. Key proactive steps include immigration policies and practices evaluation, and establishment and implementation of a clear and concise compliance program.

A Proactive Approach

Basic immigration compliance planning and training should ideally be addressed in the early days of a company's operation. In practice, you definitely want to consider it as soon as you have finished reading this article. Questions to ask from the risk management perspective are:

1. Is there an immigration compliance program?

2. Who is in charge?

3. Are records kept and maintained appropriately and consistently?

4. What are the likely damages of an audit?

5. Are there other immigration matters, such as sponsored foreign workers, that the company is or should be aware of?.

6. What remedial measures should be taken and what are the specific steps and timelines?

Immigration compliance programs tend to be strongest when administered by a designated human resources or legal professional who undergoes both initial and frequent refresher training. …