Businesses across the U.S. face increased federal scrutiny, making proactive workforce compliance essential to mitigate risk and avoid costly penalties.
Project Firewall. That moniker marks the most recent sweeping enforcement effort initiated by the Department of Labor to target employer compliance with the H-1B visa program.
This announcement follows significant proposed changes to the H-1B visa program, the termination of work authorization for hundreds of thousands of people with Temporary Protected Status, numerous raids on industry and location specific targets across the U.S., increased EEOC actions focused on bias against American workers, increased I-9 audits and site visits, and more.
While the architecture, engineering, and construction industries are no strangers to compliance burdens, be it from OSHA regulations, state and local zoning and permitting requirements, to licensing and environmental rules, today, amid heightened scrutiny on the immigrant workforce, industry leadership must also add worksite enforcement to that list of concerns.
Much like safety planning or site logistics, worksite enforcement protocols require renewed attention. Managing mobile and distributed workforce such as surveyors in trucks, engineers inspecting client job sites, subcontracted crews operating across multiple locations, create further compliance confusion, especially when employees are not based at a central, controlled facility. Adding subcontractors, vendors and staffing agencies creates the need to understand indirect exposure and the possibility of joint employer liability.
It is essential for firms to have a strong understanding of their workforce, their vendor relationships, and where they face the greatest exposure. Preparation is less about expecting the worst and more about integrating compliance into daily operations.
By aligning your business processes with regulatory expectations, AEC firms can respond swiftly, protect their workforce, and keep projects moving forward without disruption.
Understand the immigration enforcement landscape.
Adding a layer of complexity, AEC firms must contend with multiple government agencies, each with specific enforcement authority:
- Homeland Security Investigations, the investigative arm of the Department of Homeland Security, is responsible for criminal activities (smuggling, trafficking) as well as conducting I-9 audits to confirm technical and substantive compliance with a company’s obligation to verify its employees identity and work authorization.
- The Office of Fraud Detection and National Security, part of U.S. Citizenship and Immigration Services, conducts site visits to ensure the accuracy of visa (e.g., H-1B and L-1) applications. FDNS worksite visits are generally unannounced, usually taking place at the employer’s principal place of business and/or at the nonimmigrant employee’s work location as indicated on Form I-129, though officers will also email employees and company representatives for information.
- Immigration and Customs Enforcement leads worksite raids, often in conjunction with other law enforcement. Arriving at a workplace unannounced, these efforts often target specific people or investigate suspected criminal activity. ICE also conducts site visits at the work locations of F-1 international students employed pursuant to their OPT and STEM OPT authorization to verify training plan and reporting requirement compliance.
- The Department of Justice and the Immigrant and Employee Rights Section are responsible for civil and criminal aspects of immigration law related to employment, overseeing anti-discrimination provisions of law based on citizenship and national origin.
- The Department of Labor will investigate wage and labor violations, particularly in relation to nonimmigrant visas and the employment-based green card process.
- The Equal Employment Opportunity Commission focuses on employment discrimination based on national origin, including protecting U.S. workers.
In addition, new federal agency cooperation agreements allow enforcement agencies to access information from the Internal Revenue Service, Social Security Administration, and well as through E-Verify.
It is critical that employers not only know their current workforce, but past areas of vulnerabilities and the potential impact to future hiring practices.
Consequences: civil and criminal liability.
The expanded focus on workplace investigations increases scrutiny of employers, and any potential liabilities could come with serious consequences, including:
-
Civil violations. Under the Immigration Reform and Control Act, it is unlawful for employers to knowingly hire an unauthorized worker. Civil penalties range from $676 to $5,404 per worker for a first offense with subsequent offense fines rising as high as $27,000.
Technical violations for improperly completed I-9 Forms also carry civil fines from $272 to $4,874 per individual, based on the number of violations and level of offenses. Additional fines apply for improperly requesting additional documentation from employees or accepting false documents. Repeat offenders also face debarment from federal contracts.
Violations of H-1B and H-2B regulations are also subject to penalties through the Department of Labor, rising to more than $100,000 with a finding of willful or repeated violations. -
Criminal violations. Employers may be held criminally liable for knowingly employing unauthorized workers or recruiting and facilitating their employment, particularly when there is a pattern or practice of hiring in violation of the law.
Those in violation face a $3,000 fine per worker with severe fines from between $10,000 to $250,000 and prison sentences between six months and 20 years for senior staff and executives. Under statutes to criminalize “harboring undocumented aliens,” employers also face potential jail time.
Build safety protocol:
-
Compliance infrastructure. AEC firms must take proactive steps to ensure compliance through the development and implementation of clear, written policies. Response protocols should include step-by-step procedures for ensuring onboarding and employee verification processes align with immigration and federal discrimination laws; responsibility for monitoring work authorization of foreign national employees who require ongoing reverification; and documentation integrity across projects, offices, and geographies for all employees.
Firms should also establish policies for subcontractors and vendors to prevent unauthorized employment. -
Designate a response team. For internal quality assurance, assign clear responsibilities for human resource staff, project managers, field supervisors, and legal counsel to review and monitor compliance requirements to stay ahead of regulatory changes and meet internal guidelines. All responsible parties should be trained in regulatory requirements, employer obligations based on visa types, and agency policies.
Additionally, AEC firms should develop and maintain clear, written policies for how employees, both in the field and at headquarters, should interact with federal agents conducting worksite enforcement activities.
If you have multiple active job sites, determine a primary compliance lead (a worksite liaison) for each location or regional office. This person should be the only employee authorized to interact with federal agents and review any legal documents presented.
All employees should have the name and contact information of the designated worksite liaison and the backup. Employees should be trained to immediately notify these individuals if any law enforcement agents or federal inspectors arrive on-site or initiates contact. - Know your workforce. It is essential that companies understand their employment structure, including which workers are employed directly, which are contracted, and which hold temporary work authorization (e.g., H-1B, STEM OPT, or EAD). This determines what rules you are obligated to follow, what agencies may investigate, and what monitoring is needed to be in good standing.
-
Test the system. Conduct internal audits and documentation integrity. Maintain accurate and accessible records across all worksites. Review visa tracking procedures and verify that subcontractor documentation meets federal standards. Schedule check-ups in regular intervals as sudden and ongoing policy changes often require realignment of procedures.
In addition to immigration-specific policies, ensure that all active worksites are in compliance with OSHA standards and that required safety and employment notices are clearly posted and up to date.
This serves as preventative maintenance and provides assurance that your compliance framework can stand up under scrutiny.
Fireproof compliance: align people and processes.
AEC firms that invest in proactive compliance measures are positioned to respond to enforcement actions with control and clarity, rather than confusion and crisis.
To build that level of preparedness, companies often benefit from external support. Experienced immigration counsel can assist AEC firms by developing response protocols for worksite visits, conducting internal audits to identify and correct potential issues, training HR personnel, and helping ensure that workplace practices are consistent with current enforcement expectations.
Nam Douglass, Esq., is a N.C. Board Certified Immigration Law Specialist and partner at Garfinkel Immigration Law Firm. Contact her at nam.douglass@garfinkelimmigration.com.