The federal government recently announced several changes to U.S. immigration legislation. Two key topics involve increased enforcement efforts of the Immigration and Customs Enforcement (ICE) and changes in request for prevailing wage procedures. 

Preparing for an I-9 Audit or Inspection Immigration and Customs Enforcement (ICE) has significantly increased its enforcement efforts with respect to undocumented workers and Form I-9 recordkeeping. Employers must be prepared to quickly and effectively respond to an ICE-issued Notice of Inspection (NOI). ICE may review the employer’s files in as few as three days from the time the NOI is issued. Often enough, a prompt and complete response to the ICE office handling the investigation will end or significantly curtail their inquiry. In any event, a cooperative employer is far less likely to face fines or sanctioning. With that in mind, employers can prepare themselves for responding to a NOI by ensuring the availability of the following records:

  • Original Form I-9 (Employment Eligibility Verification Forms) and any attached documentation presented at the time of I-9 completion for at least the past three years;
  • Employee roster or payroll listing all persons employed for at least the past three years;
  • Monthly payroll reports for the past 12 months;
  • Copies of four most recent state quarterly tax reports;
  • Copies of IRS Form 941 Quarterly Tax Statements for the past 12 months;
  • Listing of any independent contractors and their dates of hire and termination for the past three years;
  • Copies of IRS Form 1099s for all independent contractors;
  • A current listing of all paid on-call individuals employed on a sporadic, irregular, or intermittent basis and who are not deemed to be an employee;
  • Copies of any Social Security Administration Employer Correction Requests (socalled “No-Match Letters”) for the past 12 months;
  • Copies of any U.S. CIS Form I-129 or I-140 (temporary or permanent worker) petitions and related Department of Labor (DOL) certificates for the past three years
  • Copies of the company’s articles of incorporation, business license and most recent annual report
  • Employer Identification Number (EIC) and Taxpayer Identification Number (TIN) documentation
  • If available, a copy of the company procedures or policies regarding Form I-9 completion
  • E-Verify Memorandum of Understanding (if participating in program)
  • Documentation related to any previous inspection by either ICE or the DOL
  • Documentation related to the use of temporary staffing agencies

Change in Request for Prevailing Wage Procedures On December 4, 2009, the DOL announced its new procedures for obtaining a prevailing wage determination (PWD) with respect to the H-1B, H-2, E-3 and PERM programs. Beginning January 1, 2010, all requests for PWDs will go through the National Prevailing Wage Helpdesk Center in Washington, D.C. This marks a change from the current processes available to employers through either the State Workforce Agencies or Foreign Labor Certification Data Center.   It is never too soon to review your internal I-9 compliance systems or create one and ascertain the availability of the documentation listed above.