What to Do When ICE Knocks on Your Door
By Michael Wildes Managing Partner, Wildes and Weinberg PC | September 02, 2010
As if hoteliers didn't have enough to worry about, a new concern can be added to their list: U.S. Immigration and Customs Enforcement (ICE) has been ramping up its investigations of foreign-born workers and their employers. If your hotel employs immigrant and nonimmigrant workers or, worse yet, undocumented workers, you should be on high alert. In the 2008 fiscal year alone, ICE made over 5,100 administrative arrests based on immigration violations and over 1,000 additional criminal arrests for charges like harboring or knowingly employing illegal aliens.
The Obama administration has committed to shifting its focus toward employer-side enforcement techniques. To date, the most commonly utilized tools in the toolbox are H-1B site visits, Form I-9 investigations and-the most disruptive of all-worksite raids.
H-1B visas are granted to foreign-born specialty occupation workers. The list of qualifying specialty occupations is somewhat limited in scope and also very strict in its interpretation. In order to reduce and discourage fraud, ICE has been deploying agents to conduct site visits and ensure that H-1B employees are working in the capacity to which their visas were issued. H-1B visas are employment sponsored and if your hotel has petitioned these visas for foreign-born workers, be sure that you have done so within the confines of the law. This means that if an ICE agent were to arrive on-site unannounced, he/she should be able to locate easily your employee and find him/her working in the precise position declared to the U.S. Citizenship and Immigration Services (USCIS). As such, the employee should not be working in any location other than the one named in the petition.
To ensure that an H-1B site visit proceeds smoothly, the following measures should be carefully considered:
- The hotel should designate a contact person for communication with USCIS/ICE in the event of a site visit.
- All foreign nonimmigrant employees, including H-1B status holders, should be encouraged to maintain copies of their passport ID pages, Notices of Action, and Form I-94 in their desks to prove identity if needed.
- H-1B employers should maintain a public access file containing a copy of the certified Labor Condition Attestation, proof of the prevailing wage determination, copies of the employer's compensation system, or pay scale used to determine actual wages being paid to the employee.
- Hotel managers should maintain materials used to satisfy employee/union notification requirements, a summary of benefits offered to U.S. workers in the same occupational classification as H-1B employees, and any other documents for special situations.
- Documentation connected to the H-1B application should be retained for one year beyond the last date on which any H-1B employee was employed.
- Human resource or other personnel should be ready to confirm the employee's date of hire, job title, work location, and salary.
If your hotel is selected for a site visit, with or without advance notification from USCIS, it is strongly recommended that you seek professional legal counsel to guide you through the process and instruct you how to proceed.
Form I-9 investigations seek to confirm that the employer verified the work authorization status of its employees at the time of hire. All employees hired since November 6, 1986 are required to have an I-9 form on record. As with H-1B site visits, audits and investigations are occurring with increasing frequency. In June 2009, ICE served 650 I-9 audit notices in one single week-a practice that has continued since.