Site visits are no longer a concern only for high-risk employers. They are slowly becoming increasingly common among businesses that hire foreign talent, such as workers on an H-1B visa. To uphold the integrity of the immigration system and reduce the occurrence of fraudulent activities, federal agencies have accelerated site visits to ensure organizations are complying with immigration regulations.
Employers who fail to meet these mandatory requirements can face serious consequences, including civil fines and even criminal penalties, which can damage the organization’s reputation and affect regular business operations.
This article discusses the key differences between DOL, ICE, and FDNS site visits and shares proactive steps H-1B employers can take to ensure compliance with USCIS guidelines.
What is a DOL Audit?
A DOL audit is a site visit conducted by the U.S. Department of Labor to ensure businesses are complying with the federal labor laws. The DOL performs various types of audits, but the most common is to verify whether companies are maintaining compliance with the Fair Labor Standards Act (FLSA) and Immigration and Nationality Act (INA).
A DOL audit can be conducted for many reasons, such as:
Employee complaints: If the employee thinks the labor laws are being violated at their workplace and they report it.
Random selection: The DOL may select your organization, along with other companies, to perform a random audit.
Industry focus: Sometimes, DOL audits are focused on a specific industry, such as tech, healthcare, etc.
Turnover rates: If your organization reflects high turnover rates, it may raise suspicions regarding your office policies.
Errors in Form 5500: Mistakes such as wrong or incomplete information, inconsistency in financial figures, missing attachments, and late filings.
During a DOL audit, the officers check:
The accuracy of the Labor Condition Application (LCA)
Prevailing wage compliance
Validity of job roles, wages, and locations mentioned in the H-1B petitions
Public Access Files (PAF)
DOL Audits: Consequences of Noncompliance
If H-1B employers fail to comply with the DOL’s guidelines, their organization may face serious consequences, including:
Civil monetary fines: Employers may be subject to hefty monetary fines, depending on the severity of the case.
Payment of back wages: If during employment, the H-1B workers were not paid fairly, or were benched, then the employer may be required to pay unpaid wages that they owe to the employees.
Debarment from the H-1B program: In some serious cases of repeated violations, the employer may get permanently debarred from the H-1B program.
Revocation or denial of H-1B petitions: In some cases, USCIS may deny the pending H-1B petitions or revoke the approved ones.
Criminal penalties and reputation damage: If potential fraud or compliance issues are found, the case may be transferred to law enforcement for further investigation. This will negatively affect the company's image.
How Can H-1B Employers Prepare for a DOL Audit?
To avoid serious compliance risks and facilitate a smooth audit process, all H-1B employers must do is follow a structured process and take some proactive steps, including:
Conduct internal audits: Regularly conduct mock audits to identify potential errors early and rectify them.
Document working hours: Set up an internal system to record the working hours of all employees.
Provide training to HR staff: Train the HR staff to ensure they are aware of all the protocols and know how to handle unexpected audits.
Maintain proper PAFs: Make sure the Public Access Files are saved systematically in an accessible manner.
Consult your legal counsel: Keep your legal counsel updated and consult them if you have any doubts.
What is an ICE Audit?
An ICE audit, also known as an I-9 audit, is conducted by U.S. Immigration and Customs Enforcement to ensure businesses are maintaining compliance with the I-9 regulations. All employers are required to file and submit a Form I-9 when they hire a new worker, as it verifies whether the employee is legally authorized to work in the United States.
An ICE audit is conducted to sustain the integrity of the immigration system by preventing the hiring of unauthorized workers and investigating complaints or irregularities in I-9 documentation.
During an ICE raid, the officers look for:
Properly completed and saved I-9 forms.
Timely verification of employment authorization (within 3 days of hiring).
Accurate documentation across all I-9 records.
Any inconsistencies or fraudulent activities, such as expired authorizations or systematic errors.
ICE Audits: Consequences of Noncompliance
Complying with I-9 regulations is a mandatory obligation for all U.S employers, and if they fail to do the same, they may have to face serious consequences, such as:
Civil penalties: Employers may face serious noncompliance penalties that may range from $288 to $28,619 per violation.
Criminal penalties: In cases that involve repeated violations, employers may have to deal with criminal prosecution.
Disruption in business operations: These investigations often take several days to weeks, which may hinder the normal flow of your regular operations.
Debarment from federal contracts: Employers who fail to comply with I-9 regulations may be barred from participating in federal contracts and immigration programs.
Reputational damage: If your organization is seen to be involved in illegal activities like these, then it may tarnish your image in the industry.
What is an FDNS Audit?
An FDNS visit is a site check that is conducted by the USCIS’s Fraud Detection & National Security unit. These site checks are mostly conducted to check the legitimacy of H-1B, L-1, religious worker, and F-1 STEM OPT trainee applications, and check whether the employer is adhering to all immigration requirements. These visits are often unplanned and may be conducted unexpectedly.
Apart from this, FDNS site visits are also conducted to:
Ensure the foreign worker is legally employed according to the petition
Confirm the legitimacy of the sponsoring business by thoroughly inspecting the worksite
Check for fraudulent activities and inconsistencies in filings
During an FDNS site visit, the officer may:
Check the legitimacy of the office address mentioned in the immigration petition.
Interview personnel to confirm the beneficiary’s work location, physical workspace, hours, salary, and duties.
Speak to the beneficiary.
Take photographs of the work location.
Check the information mentioned in the Form I-129, LCA, PAF, and payroll documents.
FDNS Visits: Consequences of Noncompliance
If an H-1B employer is found noncompliant during an FDNS site visit, they may face severe consequences, such as:
Revocation of the H-1B petition: USCIS may deny any pending petitions and revoke the approved ones, affecting the future goals of the organization.
Referrals for further investigation: If fraud, misrepresentation, or other compliance issues are detected, then the case may be transferred to ICE or other agencies for further detailed investigation.
Disruption in business operations: Loss of skilled workers may disrupt the regular flow of business operations.
Reputational damage: If an organization is labeled as fraudulent, its industry image is significantly affected.
Increased audits: H-1B employees who are found noncompliant during an FDNS site visit may become subject to more frequent audits and inspections in the future.
The OnBlick Advantage
Maintaining compliance with DOL, ICE and FDNS audits can get overwhelming, but OnBlick’s compliance-driven platform helps you comply with DOL, ICE, and FDNS regulations without any last-minute hassle.
To help you prepare for DOL audits, we provide:
LCA tracking and validation with automated flagging for errors
Automated alerts to ensure you never miss a deadline
Seamless LCA parsing technology that helps you extract and organize important data for easy access and review.
To help you prepare for I-9 audits, we provide:
Guidance on internal audits to identify and resolve Form I-9 errors
Seamless E-Verify integration
A detailed audit trail
Access to OnBlick’s ARN services to easily complete your I-9 verification
Guided workflows to easily complete your I-9 verification and corrections
To help you prepare for FDNS audits, we provide:
Easy access to case-specific documentation and history
Actionable tips and FDNS site visits questionnaire.
Quick retrieval of employee worksite details, job descriptions, and status logs
Centralized system for fast response to unannounced FDNS site visits
Summing up
H-1B employers are often subject to regulatory compliance audits due to the complexities involved in sponsoring foreign workers. The three primary types of audits they typically face are DOL, ICE, and FDNS audits.
Employers must maintain compliance and cooperate during these site visits, as failure to do so can lead to serious legal and financial consequences, significantly damaging the organization's reputation. Employers must maintain proper documentation, conduct regular internal audits, and consult their legal counsel to avoid serious compliance risks.
Book your complimentary consultation today and learn more about our H-1B case management and audit services!
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