Immigration Compliance in a Heightened Enforcement Environment

As immigration enforcement intensifies under evolving federal priorities, employers must take proactive steps to ensure their organizations are compliant with key regulations. 

With increased scrutiny from agencies such as U.S. Immigration and Customs Enforcement, the Fraud Detection and National Security Directorate (FDNS), and the U.S. Department of Labor (DOL), Priscilla Muhlenkamp, an attorney with Fragomen in Washington, D.C., who spoke at SHRM25 in San Diego, emphasized the need for vigilance. 

“Start thinking about what your risks are within your organization,” she said, and begin “to strengthen your compliance.”

Key Focus Areas for Enforcement

Entry points for immigration enforcement include I-9 and E-Verify audits, H-1B Labor Condition Applications (LCAs), F-1 science, technology, engineering, and math (STEM) optional practical training (OPT) compliance, and FDNS site visits. Employers should also be prepared for increased oversight of B-1 business travelers and visa waiver entrants. 

I-9 Compliance

Federal law requires that all employees complete an I-9 form to verify employment eligibility. These forms must be retained for three years after the date of hire or one year after the date of termination — whichever is later. Muhlenkamp recommended regular internal reviews. 

“Part of maintaining a resilient and healthy program is to do self-audits from time to time,” she said, which “can be enlightening in terms of weaknesses.” 

Self-audit steps include:

• Gathering and prioritizing: Run a payroll report and list all employees terminated in the past three years. 
• Securing missing I-9s: Identify and correct missing forms for current employees. 
• Fixing technical errors: Ensure any corrections clearly document who made the change and when. 

Best practices include using a compliance checklist, conducting regular refresher trainings, and establishing robust protocols — especially for hybrid and remote workers who may require alternative verification procedures. 

Toolkit: Complying with I-9 and E-Verify Requirements 

H-1B LCA and Petition Compliance

H-1B enforcement actions are less frequent than I-9 audits, Muhlenkamp noted. H-1B actions are “usually complaint-driven,” but they can be “more complex than an I-9” audit. Employers must ensure that the LCA is accurate and that it reflects the proper wage, benefits, and job location. The LCA must be posted publicly and given to the employee. 

When investigating H-1B programs, the DOL will typically look at all of an employer’s H-1B workers and review whether the terms and conditions of employment are being upheld. This includes verifying that return transportation is offered in the event of early termination and that notice and termination procedures are compliant. 

Muhlenkamp listed the following H-1B risk areas: 

• Timing of compensation (must be upon entry into employment).
• Changes to worksite locations that could impact wages.
• Changes to job title or duties. 
• Short-term deployments.
• Other changes to terms and conditions of employment. 

The DOL requires a significant amount of paperwork to be produced, and Muhlenkamp said she often calls the investigator to identify the scope of the investigation. She cautioned employers “not to embark on a self-check all by yourself on all of these elements. It’s really complicated; you should involve counsel where you can.”

How-To Guide: How to Sponsor an Individual for an H-1B Visa

F-1 STEM OPT Compliance

Employers participating in the STEM OPT program must comply with several obligations, including:

• Using E-Verify.
• Developing a training plan with the student.
• Monitoring the student and signing self-evaluations.
• Reporting changes in a timely manner. 

The U.S. Department of Homeland Security (DHS) will give 48 hours’ notice before conducting a site visit. Over the course of their visit, they will interview students, managers, and HR and look at records, emails, and the training plan. If the employer is noncompliant, there is the risk of denial of STEM OPT applications for future employees and loss of F-1 status for students. This “can deprive you of a valuable work source,” Muhlenkamp said. 

To stay compliant, employers can engage in these best practices:  

• Know your F-1 population by using a central list with basic information.
• Train managers on employment parameters, supervision, assessments, and reporting requirements.
• Prepare students to describe their work and studies for DHS officers.
• Consider periodic spot checks. 

Business Travelers 

Although it may seem like a minor issue, misuse of B-1 and the Electronic System for Travel Authorization categories can trigger compliance concerns. Employers should think about “establishing guidelines on what people are allowed to do,” Muhlenkamp said, especially when it comes to:

• Communicating the limitations of the business visitor category.
• Limiting who can issue invitation letters.
• Leveraging technology to monitor short-term travel. 

FDNS Site Visits 

Under the authority of U.S. Citizenship and Immigration Services, the FDNS conducts unannounced visits to verify the existence of an employer, the validity of information that the employer has provided, and whether sponsored foreign nationals are working in compliance with their terms of admission. 

Information collected during site visits is used to develop fraud detection databases, create profiles of types of companies that have records of good faith use of immigration programs and records of immigration compliance, and identify factors that could indicate fraud. 

“I have heard of more site visits recently,” Muhlenkamp said. “That’s just an indication that the Trump administration really wants to have more of these site visits occur.” 

During a site visit, the FDNS arrives unannounced seeking to interview staff and managers. The agency’s purpose is to corroborate petition and business details with evidence. Investigators may inquire about broader immigration programs and might send follow-up emails requesting more information.

Employers should have a plan and prepare their employees for the possibility of such visits. Plans should include knowing company policies, identifying a point of contact, and creating a list of sponsored employees. HR, managers, and employees should also know what to expect should an unannounced visit occur, especially in today’s environment of heightened enforcement.