Hiring foreign talent brings innovation and global expertise, but it also comes with compliance responsibilities. A single oversight in documentation or recordkeeping can open the door to an immigration audit leading to fines, legal exposure, and reputational risks.
This article highlights the five most common mistakes employers make that trigger audits and provides strategies to stay compliant. Whether you’re hiring H-1B professionals, managing OPT/CPT interns, or handling I-9 forms, staying audit-ready starts with awareness and proactive planning.
Why Immigration Audits Happen?
Immigration audits are not random they are strategic reviews conducted by:
- ICE (Immigration and Customs Enforcement)
- DOL (Department of Labor)
- USCIS (U.S. Citizenship and Immigration Services)
These agencies ensure employers follow immigration laws and manage foreign workers properly. Audits may be triggered by:
- Employee complaints or anonymous tips
- Data mismatches (I-9 vs. Social Security records)
- Targeted enforcement in certain industries/regions
- History of violations or suspected fraud
Businesses that fail compliance risk fines, loss of sponsorship privileges, and ongoing scrutiny.
Mistake #1: Incomplete or Inaccurate Form I-9 Records
Form I-9 verifies employee identity and work authorization. Missing signatures, using outdated forms, or late completion are common pitfalls. Even small errors can lead to fines ranging from $272 to $2,701 per violation.
Best Practices:
- Always use the current USCIS form
- Train HR teams on proper document review
- Conduct internal audits and fix errors promptly
- Store I-9s securely and separately from personnel files
- Consider electronic I-9 systems for accuracy and reminders
Mistake #2: Non-Compliance with LCA Requirements (H-1B)
Employers must follow Labor Condition Application (LCA) rules, including posting notices, paying required wages, and keeping a Public Access File (PAF).
Common Errors: Missing postings, wage discrepancies, or incomplete PAFs.
Stay Compliant:
- Post notices correctly (physical or electronic)
- Pay H-1B workers the higher of prevailing or actual wage
- Maintain a complete PAF for public inspection
- Audit records regularly
Mistake #3: Misclassification of Employees
Misclassifying foreign workers as independent contractors instead of employees is a common and risky mistake. Common mistakes could be Contractors doing employee-level work, lack of supervision, or inconsistent tax treatment.
Key Difference:
- Employees: Work under employer control, get W-2s.
- Contractors: Work independently, receive 1099s.
Avoid Misclassification:
- Apply IRS classification tests
- Ensure visa roles meet employer-employee requirements
- Review classifications regularly with legal guidance
Mistake #4: Failure to Update USCIS on Material Changes
Employers must notify USCIS when there are changes in:
- Job title or duties
- Work location
- Salary adjustments
- Layoffs or schedule changes
Failure to file an amended petition can lead to visa revocation, employee loss of status, and employer penalties.
Key Takeaway: Always file amended petitions before implementing material changes.
Mistake #5: Ignoring Expiry Dates and Visa Status Validity
One of the biggest risks for employers hiring foreign talent is failing to track visa expiration and work authorization dates. Overlooking these critical dates can lead to serious legal and operational problems.
The Risks of Not Tracking Expiry Dates
When visa or work authorization expires without renewal, employees may become out of status or accrue unlawful presence in the U.S. This exposes both the employee and employer to risks such as:
- Loss of legal work authorization
- Potential fines and penalties for employers
- Increased chances of government audits and investigations
- Risk of deportation or future immigration barriers for the employee
What is PERM Supervised Recruitment?
For many employment-based green cards, a U.S. employer must undergo the PERM recruitment process before submitting an ETA-9089 PERM labor certification application.
However, if any concerns arise regarding the recruitment efforts in a Department of Labor (DOL) audit, the Certifying Officer (CO) may enforce PERM supervised recruitment for your employer. If this happens, here is what to expect.
The PERM Supervised Recruitment Process (Step by Step)
1. Order Issued: CO sends a remand letter mandating supervised recruitment.
2. Prepare Ad Content: Employer drafts ads per CO’s instructions.
3. Submit for Approval: Ads must be approved by the CO before publication.
4. Post Ads: Employer publishes ads exactly as instructed.
5. Applicants Respond to DOL: Resumes go directly to the CO.
6. CO Screens & Forwards Resumes: Only potentially qualified candidates are sent to the employer.
7. Employer Interviews: Must contact and interview all referred candidates.
8. Submit Recruitment Report: Within 30 days, provide full evidence, interview notes, and lawful rejection reasons.
9. Final Decision: CO approves or denies based on compliance.
Note: This process can add 12+ months to PERM processing and requires absolute compliance.
Common Reasons for PERM Audits
When sponsoring green cards, the Department of Labor may audit a PERM application due to:
- Wage discrepancies with the prevailing wage determination
- Recruitment doubts, such as insufficient documentation
- Job requirement inconsistencies between ads and applications
- Errors or missing documents in the submission
- Random checks or high-risk industries
- Employer’s past violations or suspected fraud
Strategies to Minimize PERM Audit Risks
- Review applications carefully for accuracy
- Ensure offered wages align with prevailing wage determinations
- Maintain detailed recruitment records ads, resumes, interview notes
- Respond to audit letters fully and on time
- Seek legal guidance to avoid red flags
Immigration Audits: Risks and Consequences
Audits can lead to:
- Fines and penalties for I-9 or LCA errors
- Reputational damage impacting employees and clients
- Visa revocations or loss of sponsorship privileges
- Ongoing scrutiny with repeat audits
Compliance Checklist for Employers
- Conduct regular internal audits of I-9s, LCAs, and PAFs
- Use digital tools to track visa dates and compliance requirements
- Provide training for HR and legal teams
- Consult immigration counsel before making changes impacting foreign employees
How to Avoid PERM Supervised Recruitment
- Keep a complete audit file: ads, resumes, interview notes, rejection reasons.
- Respond to audit letters thoroughly and on time.
- Work with experienced immigration counsel to ensure compliance.
How Can Kodem Law Help You?
Immigration compliance is more than just following regulations about protecting your business, supporting your workforce, and securing your company’s long-term success. By steering clear of these five common mistakes and keeping your processes organized, you can confidently hire and manage global talent without worrying of audits.
Stay proactive. Stay informed. Stay audit ready.
At Kodem Law, we specialize in guiding employers through the complex immigration landscape. From compliance audits and training to creating tailored tracking systems, we help you stay ahead of risks and maintain full compliance with immigration laws. Let us be your trusted partner in building a strong, compliant global workforce.
