When the ICE Man Cometh

Based on the first Trump Administration, everyone expected an early focus on immigration, deportations, and audits. I think what has taken some employers by surprise is just how sweeping that focus has been, and how fast they have had to move to respond to this dynamic compliance environment.

On Inauguration Day, President Trump rescinded a 2011 Immigration and Customs Enforcement (ICE) Sensitive Locations memorandum, which enshrined longstanding policy that ICE agents would generally refrain from worksite enforcement action in sensitive locations such as churches, courthouses, schools, hospitals, and healthcare facilities. As a result, ICE raids and other immigration enforcement actions are more likely at such locations, so it is essential that they take steps to prepare. In addition, we have already seen a sharp uptick in I-9 audits initiated in these first few months of 2025, which is in alignment with the previous Trump Administration that conducted 10 times as many I-9 audits in 2019 as we saw in the previous fiscal year.

In this climate, employers who sponsor foreign national employees should prepare to ensure that their employment and immigration practices are fully compliant. The United States Citizenship & Immigration Services agency (USCIS) operates the Fraud Detection & National Security (FDNS) unit, which conducts unannounced site visits of employers sponsoring immigrant employees. This includes employers with H-2, L-1, and H-1B employees — the most common employment-based visa category sponsored by healthcare entities. FDNS officers can show up without notice to ask questions about H-1B employees’ wages, hours, worksite(s), job titles, and other terms and conditions listed in the approved H-1B petition. Employers must cooperate with FDNS and provide requested information, so it is imperative that they train employees to immediately connect an FDNS officer to a designated company representative. Penalties for noncompliance include civil penalties, debarment from federal contracts, and criminal investigations by ICE.

Given the purview of FDNS and the agency’s focus on compliance with approved immigration petitions, employers cannot adopt a “set it and forget it” attitude. An H-1B petition is usually approved in three-year increments, and its approval is based on a specific occupation at a specific wage at a specific place. If any material changes occur to terms and conditions of employment, an amended H-1B petition must be filed. For example, if an employee simply receives a standard wage increase or moves to another worksite address still within the city limits, no H-1B amendment would need to be filed; the employer could simply post the required department of labor LCA notice at the new worksite. However, if an employee is furloughed, moves to a worksite in a different Metropolitan Statistical Area — which happens most commonly with remote employees relocating — or is promoted from an individual contributor role to that of a supervisor, a new H-1B petition would need to be filed.          

So to ensure your worksite is not rocked and rolled by a government audit, you’d do well to channel your inner Chuck Berry and go, go – to make sure your H-1B is good.