The incoming presidential administration has placed a high priority on immigration enforcement, thereby creating an increased likelihood of immigration-related employer investigations in the coming months.

Taft provides the following recommendations to employers to ensure compliance and readiness in the event of a government investigation:

• I-9 Compliance – Employers should ensure they have compliant processes in place to prepare and maintain Forms I-9 for employees. Regular audits of Forms I-9 should be conducted and corrections to Forms I-9 should be made in accordance with I-9 guidance.
• E-Verify Compliance – Employers who are registered to use E-Verify should ensure they have compliant processes in place to verify new employees through E-Verify. Employers must maintain copies of required documents presented as part of the identity and employment verification process, including U.S. Passports, passport cards, Permanent Resident Cards, and Employment Authorization Documents (EAD), and follow guidance pertaining to tentative nonconfirmation and final nonconfirmation results in the E-Verify system.
• Worksite Investigations – Employers should ensure a plan is in place in the event of a government in-person investigation. The government can conduct an on-site investigation to assess immigration compliance in connection with a lead, a complaint, or other factors. It is important for employers to contact competent legal counsel immediately upon the arrival of government agents, emailing any search warrants that were presented.

Taft provides the following additional recommendations to employers that sponsor employees for U.S. work authorization:

• Compliance with Employer-Sponsored Filings – Employers should ensure employees are working in accordance with their employer-sponsored immigration filings. If changes have taken place, a new filing may be necessary to disclose these changes to the government.
• H-1B Public Access Files – Employers that sponsor employees for H-1B visa status should ensure their H-1B public access files are maintained in line with program requirements. The public access file must be retained by the employer for one year beyond the last date on which any employee is employed under the associated labor condition application (LCA), or if no employees were employed under the LCA, one year from the date the LCA expired or was withdrawn.
• PERM Audit Files – Employers that sponsor employees for permanent residence through the labor certification (PERM) process should ensure their PERM audit files are maintained in line with program requirements. Copies of the PERM and all supporting documentation must be retained by the employer for five years from the date of filing the PERM.

Employers seeking advice pertaining to immigration compliance and enforcement matters should contact the Taft Immigration team for further details.