Your immigration compliance plan is probably overdue for a checkup

Between a $100,000 H-1B fee that isn't quite what it seems, ICE enforcement that's shifted from raids to paperwork audits, and a whole lot of anxiety fueled by TikTok algorithms, medical practice leaders have plenty of immigration questions right now. The answer to most of them starts with the same thing: preparation.

Katie Russell, J.D., a partner at Brown Immigration Law, sat down with Physicians Practice to walk through what's actually changed, what hasn't, and what practice leaders should be doing this quarter to get their houses in order. The bottom line? Most practices have nothing to worry about, but only if they've done the work. That means keeping I-9 binders organized, knowing the difference between a judicial warrant and an administrative one, training staff on what to do if a federal officer walks through the door, and building a relationship with an attorney before you need one.

The following transcript has been edited for clarity and length.

Physicians Practice: Since we last spoke in the fall, what are the most significant changes you've seen in the way that ICE enforcement is being directed, and how is it affecting medical practices and businesses overall?

Katie Russell: Clearly, there have been many changes and lots of media coverage of the various new ways that ICE has been utilized. Now, luckily for medical practices, not a lot of fireworks going on here. I would say that the biggest shift we've seen is really more towards employer-focused enforcement issues, so less about dramatic raids and more about scrutinizing compliance documentation. It's a real snoozer. There's not a lot of stuff that the media covers with this, because it really doesn't get the clicks, but things like I-9 form completion, making sure the forms are done accurately, record retention, and visa petition adherence if you've got non-citizens that are working with you on work visas.

With the I-9 form, sometimes I'll talk to employers and they're like, "Oh, I'm not familiar with that." And I'm like, "Well, that might be an issue. Please ensure that you have an admin or HR that is working on those." The form I-9 is required for all employees, regardless of immigration status, and yes, U.S. citizens must also complete them. Even a small technical error on that little form, or an outdated policy, using the wrong edition, not completing the paperwork properly, that can trigger exposure.

Now, I-9 audits, they're very rare, but I have received many a panicked call from local businesses that say, "Hey, I got this weird notice. I have three days to turn in all my I-9s and supporting paperwork. I don't know what this is and what do I do?" We can still try to address things in that three-day period, but the best recommendation I have is, look, you want to be proactive. This might not be the most exciting thing, but do internal I-9 audits quarterly. I'm in charge of our I-9 binder. We've seen enough horror stories come across that we really just encourage employers and HR departments, admins, whoever it is, just make sure you're documenting the I-9 paperwork and supporting documentation. You want to have that done and taken care of. Make it part of your standard onboarding, because let me tell you, the fines and penalties can be substantial if a practice is not being proactive and doesn't have all that lined up.

So the practical takeaway is, it's not so much dramatic enforcement operations being launched on practices. It's really administrative, so it's compliance-driven, not operationally disruptive, but it is still good to make sure that you're in a good position.

Physicians Practice: What has led to that shift in priorities? Is there really an increased risk of these clerical issues compared to years past?

KR: I would say that this is something that's pretty consistently come across our desk. It's not something that's new. I guess I'll say that it's just something we've seen kind of a low volume of, just in the background at all times. The best thing that you can do, really, is just be prepared, making sure you have all that documentation done, that you have good training. I have been hired by a number of different employers recently just to come into their offices, come into their practices, and just sit down and meet with everybody on staff. What happens if ICE shows up? What type of documentation must be provided? Having a contact person or a go-to person with a walkthrough of, "These are the things that we need to do if an ICE officer shows up." Or even if it isn't ICE, it could be another type of federal immigration office that may want to come do a worksite visit. It could be something like someone here on an H-1B visa, for instance. Those aren't necessarily ICE, but those are still immigration officers or folks that are coming in just to ensure that there's a proper filing in place, that the right disclosures have been made, that the person is doing the job that they're supposed to be doing.

It really does not get the media attention, because these aren't fancy fireworks, but it's more of a background thing. I always tell folks, if you have us come in, or have an attorney come in, or have your HR go get some training on I-9 compliance and making sure that your visa documentation is in order, that is going to save so much of a headache later on down the line if something happens.

This really isn't anything new, but because of everything else going on with immigration generally, a lot of folks are going, "Well, wait a second here, is there any type of exposure that we could have if ICE shows up and knocks on the door?" So just making sure that all your ducks are in a row. Most practices have absolutely nothing to worry about. I know that's not really going to sell much, but the fact of the matter is that it comes with preparation and planning. If you've got a non-citizen that's working for you, or if you've sponsored a non-citizen with a work visa, you should already have had an immigration attorney that helped you with that process, either someone in-house or if you have someone that you petitioned for. We keep a very close eye on all of our employment-based cases, even after approval, because if there's a change in someone's job duties, if there's a material change in what they do, or a change of pay beyond a certain threshold, that technically requires an additional filing to be submitted to USCIS to amend it. So it's a lot of low, simmering attention that needs to be spent on it, but just making sure you've got the right people and practices in place, that's going to save you so much of a headache.

Physicians Practice: What are practices really misunderstanding about their obligations?

KR: Well, I would say one big common misunderstanding is just kind of thinking that healthcare, because it's so critical, because it's so essential, is in some way insulated from being held to account with some of these compliance standards. And that's not the case. I always tell folks, healthcare employers are subject to the same employer compliance standards as any other industry, so just making sure that you have all of your documentation done with the compliance, whether it's I-9 documentation or petition terms, or just making sure that you're keeping an eye on the expiration dates coming up on someone's visa. Is a renewal due? Should the practice be requiring someone to provide a new document? Or if they go, "Oops, I just noticed that your employment authorization expired six months ago, how do we go about fixing that?" So it really is about preparation.

I think some other concerns that I've had with worksites and practices are, when do we let ICE in? When do we have to turn things over to them? That's another reason that it's really important to have an attorney come in, even just to have a quick hour-long meeting. We've got a PowerPoint presentation that we share with folks all the time. "Hey guys, we'll get some bagels, sit through this. Hopefully this is something that never comes up, but preparation is everything." Making sure that you know when, "Hey, all right, we can handle this," or, "We're going to have to pick up the phone. We want to make sure that we get our counsel on this and make sure that we're covered there."

Physicians Practice: Last time we talked, you explained the difference between a judicial warrant and an administrative warrant. Are we seeing any increase of ICE trying to expand the powers of an administrative warrant when it comes to workplace enforcement?

KR: There have definitely been instances. Anecdotally, I have had some instances in which someone comes in with a piece of paper that may or may not say what it's supposed to, or it may not be the correct warrant for whatever access is being requested. There are a lot of questions, and it is a challenging legal question that we are seeing quite a bit of shifting with. Is it a judicial warrant? Can we use an administrative warrant? What type of reach and what type of scope is covered under each of those things? That's something that we tend to cover under intensive trainings.

Also, there is a publicly accessible portion of most practices, and then behind a certain door, those areas cannot be accessed unless consent is given or if there is a warrant granting that access. Some of the site visits that I have done, we kind of walk out there and say, "Hey, this is the area that's open to the public. Folks can come in, but then beyond a certain point, this is the hard line. Folks can't come through. Do not grant access unless you have something."

And honestly, we're on call for a lot of those scenarios because practitioners want to protect their staff, their patients. This is something that's affecting real people and real individuals who find themselves in very vulnerable situations. If you have someone that's going in for medical care, they need that medical care, and they shouldn't have to be worried about what could happen, or should I skip this doctor's appointment because I'm afraid that an agent or an officer may come through. I'd say knowledge and training is the best way to go about it.

Physicians Practice: Here's a hypothetical. A DHS employee shows up at a practice with a warrant. Staff don't know if it's judicial or administrative. They're not prepared. In the split second, should they try to keep this person out of patient spaces, or let them do their thing and worry about it in court later?

KR: That's a great question. Honestly, that's what happens. A lot of times folks will freeze because they go, "I want to do the right thing. I don't want to be impeding an investigation." Despite a lot of the negative press, our federal agents and officers are doing a job, and often they're doing a very legitimate, important job that we want to make sure we're not impeding improperly.

So I always tell folks, first, verify the warrant. Ask for it. Not "hey, it's in the mail" or "hey, we're going to let you know." You need to have someone who is trained to look for certain language. We've got a handout we can give to folks with redacted examples of what these different types of warrants really look like. Look at who the issuing authority is. Is it an internal ICE officer? Is it a judge? What is the scope and any limitations that are placed on it? Because that's going to be something that's specified in a warrant.

Until verified, staff should not grant unrestricted access. Everything should be documented. Note the officer's name, badge number, sometimes they have a card with them, the time of interaction. Keep a photo or copy of all of that documentation and call counsel. I would say that's going to be the most important thing to do. If they've got something and it looks legit, it's signed by a judge, it's specifying your address, it's saying that they can search and see certain things, then you do have to allow them to go with that. But that's why having counsel is so important, because those are split-second developments, and there is always an element of surprise. They really don't give you advance notice so you can make sure you've got the person with the briefcase ready to go through it with a fine-tooth comb before they grant access.

Physicians Practice: For groups that haven't updated their compliance plans in the past year, what's the first thing they should be revisiting?

KR: All right, well, it's the most exciting thing that they will do all year. They have to check in with their HR, their admin. No matter how big or small a practice is, you've got employees in the United States, you've got folks that are in charge of onboarding, they have to do the documentation. They've got to complete the I-9 form for every employee. That form isn't just something to stuff in a mystery file or stick on a shelf somewhere. You've got to keep them organized.

So no matter how big or small or how far along or how organized a practice may be with things like I-9 paperwork, which is clearly the most thrilling thing you can do, the most practical thing is just do a check-in. Where are you at with this documentation? Is there a policy in place? Is the designated employee who is completing the I-9 paperwork with new employees trained? It might be a good idea to do a training refresher. Of the many responsibilities that admin or HR are tasked with in running a busy practice, one of those things is going to have to be this documentation. And it's always good to have a refresher.

If you look at the I-9 form itself, it's really not all that intimidating. People are like, "This is fine. I got this." But there are certain deadlines. Part one is going to need to be completed before they start or on the same day that they start, and they've got to inspect the documentation within three days of hire. There's a lot of little deadlines that are important to be mindful of.

Having an internal policy doesn't have to be anything complicated. Could be a one-pager just to go through a checklist when onboarding someone. Make sure you go through it all, make sure it's documented correctly, you're signed up for the E-Verify system, that's basically doing the I-9 online and getting immediate verification and confirmation back that the government says, yes, this person is who they're saying they are, and that is their correct documentation. Do that. Make sure you have it. Keep it all organized and together.

So I'd say, checking in: what do we got going on? Do we have nothing and we're just building this from the ground up? That's going to be better than where you were before. Keeping it together, keeping it in the binder, and reaching out for help. There's a lot of really great resources out there, not just attorneys, not just immigration attorneys. Just make sure you get that put in place. Having a plan, checking in, and sometimes talking to an attorney if you don't know where to start or you want a template, that's something that we help folks with too.

Physicians Practice: Is there a point in all this compliance, besides trying to trip up businesses and practices?

KR: I know, and that's really what it feels like. And I know that's not why these laws were set in place. Something like the I-9, it's really just a very low-bar threshold: "Hey, you want to work for me, we just got to make sure that we've got confirmation that we have your identifying information and that you have permission to work here." I never want to stress employers out. I never want to stress doctors out when they're running their practice. But it really isn't designed to trip people up. It's just more of a paperwork thing. Doctors are no strangers to the fun and joy of just endless paperwork and documentation. It's just one of those things you've got to do. Hopefully you go through an entire career never having to once worry about it or question where your I-9 binder of documentation is, but it's just good to have it as insurance in the background. And I will use the word insurance, because it is something good to do just to make sure you're not going to have issues. Keep yourself covered. That's the name of the game. That's all it is.

Physicians Practice: Let's turn to the new $100,000 fee for H-1B visas. How does this actually work, and who's bearing the financial responsibility?

KR: Yeah, I mean, that really is a legal term of art when we're talking about some of the changes that were announced last year to the H-1B program. And there was considerable panic. We have a very broad and diverse corporate client base here at the firm, small businesses, large businesses, huge corporations, and when they're looking for talent and they're looking for someone to fill a position, the first question in their mind isn't always, "Well, are you a U.S. citizen? Are we hiring American?" That's all well and good, but in some of these very critical fields, you want the right person. You want to make sure that, "Hey, I like this person's background. We see eye to eye. We are aligned. This is someone that, if I'm hiring someone on to be helping my clients or serving my patients or working shoulder to shoulder with me in my practice, I want to be able to have the ability to bring them on."

So there was quite a bit of panic about, "Is this the end of the H-1B? Does this mean that we can't bring these workers anymore?" Luckily, that is not the case. Unsurprisingly, I think it was kind of a door-in-the-face technique with the administration and how this was presented to all of us. It just said you're going to have to pay $100,000, boom. Of course, the initial announcement was not, I would say, detailed or nuanced in the sense that attorneys are looking for. There are so many different situations in which an H-1B can be utilized, and so many different answers that we need to be able to give not only ourselves but the folks that we serve. So as time went on, there was additional clarification, and luckily, we've been able to come to an understanding that for the majority of our clients, they're really not affected.

Now this $100,000 bounty, whatever you really want to call it, from the White House's perspective, they're looking at it through the lens of their agenda. This is to reduce the incentive for hiring foreign workers based on lower labor costs, and to protect American workers. And that's all well and good, but ultimately, the H-1B generally is a very common work visa for professionals, for specialized occupations: dentists, physicians, you name it. It is an employer-sponsored process, meaning that the employer is the petitioner. They are our client when we're working through this to help them bring a worker here, but they're also responsible for these fees. This $100,000 fee was clearly meant to be a deterrent, to really reduce dramatically the number of H-1B visas that are issued.

However, the majority of the H-1B processes that we do are for folks that are already in the United States. A very common pathway: they come to the United States on an F-1 visa, that's a student visa. They're here, they go to school, they graduate, they find an employer that's willing to sponsor them. If they're doing this process from within the United States, meaning they're changing their status, hopping from student status to OPT, another temporary work permission, into something like H-1B, that process has not changed. There's no $100,000 fee for that. So that has been a huge relief, because that is a huge chunk of the folks that are being brought into that status. They're already here in the United States, they have a relationship already established with an employer with a position here, and they want to kind of bring them on.

It's still something that is impacting quite a few folks. It's primarily affecting the people that have not yet received an H-1B visa in the past, or have never held that status, and if they are not doing a change of status here in the United States but rather through their consulate overseas. It's called consular processing. So for folks that need to leave the United States or enter the United States, they would first need to go and get that visa issued at the embassy or consulate. Those are the applicants that are subject to the fee.

I can tell you that as we're approaching H-1B season now, the lottery is opening here in a couple weeks, we were kind of bracing for, "Hey, with this new rule in effect, we're probably not going to see as many H-1B processes this spring." And we really haven't seen any difference, which is great. So that means this is still a very common, very heavily utilized, and properly utilized visa classification. I have no doubts that there were abuses that they were targeting and are using as a justification for cracking down on this. But luckily, the way that we've done it with our firm, we have not seen any changes. We're hoping for no bumps ahead, but that $100,000 deterrent penalty, it's not every H-1B. It's many, and it is going to make it harder for folks overseas that are looking to come work in the United States. But it's not as bad as we were all bracing for.

Physicians Practice: When one of these consular H-1Bs is coming over, who pays that fee? The worker or the company bringing them in?

KR: Well, frankly, I don't know who's going to be dropping the dough, because it is an amount. That's often more than the annual salary that's offered to someone. All fees need to be paid by the sponsoring employer. And that's a hard pill to swallow. I'm sure that there are folks out there that aren't batting an eye to make sure that they get the right person to come over to fit their business needs. But that's a pretty tall order.

Physicians Practice: That's not going to be a problem for the Cleveland Clinics and Johns Hopkinses of the world, but a rural hospital in Wichita probably can't absorb that. Are there any structural or legal strategies practices could use to mitigate the cost?

KR: I mean, the H-1B is not the only game in town. A lot of what we do as attorneys is, we've got this visa system in the U.S. It's A through Z, there's a visa for every letter in the alphabet. A lot of times, if we're working with someone, we're like, "Hey, let's just kind of spitball, let's see what we got. Let's play with the information a little bit. Let's see what we can kind of cook up in terms of alternatives." And oftentimes, we can find a different pathway. We can find a different type of visa, whether it's non-immigrant, like the H-1B. There's a lot of different types of work visas. That's not the only one that folks can pick from. Sometimes there's also immigrant options, meaning that an employer can also sponsor someone to get permanent residency.

So that is the pathway that we often introduce to folks and say, "Hey, I know you've done your research. I know you've heard about this stuff. I know you read online before the consultation. But let's maybe take a step back and just kind of blow this thing up. Let's reimagine what this could look like." And those conversations are often so much fun because we're able to say, "All right, you came into this conversation thinking that this was all you had to work with, and that you had this list of problems and questions for us to get through. And we did, but we kind of blew some walls down, and maybe we identified something that's going to be a better fit, maybe less expensive, maybe faster, maybe not going to be subject to the H-1B restrictions, whether it's the fee or the lottery selection." There's so much that comes with it that often we can find better options.

And that always feels really good, because ultimately, we're here to help people get the folks that they want, find a solution, and be creative with it. So that's really satisfying. And I would say, really, it just comes down to what kind of relationship do you have with your counsel. Sit down and don't just assume that you can do what you've done every year for every worker that you've had. A lot of times there's better options and things that can be a better fit.

Physicians Practice: So what I'm hearing is, become friendly with your attorney.

KR: I mean, we're a very strange breed. But I'm telling you, there's nothing more fun than just cracking into a problem and being like, "You know what? I actually got something for you. Consider this."

Physicians Practice: For practice leaders who are feeling overwhelmed by all this, the heightened ICE enforcement, visa costs, what is the most practical first step they can take this quarter?

KR: This is something that I say to folks whether they're running a business, a practice, if it's just an individual worried about their family. I mean, this is just advice that I give to everybody. What I have seen, more than anything in the past year or so of this administration, is that knowledge is power. And I say that in the sense of, most of my nine-to-five, which is not my complete workday, I'll add, that's the fun part of my day. That's when I have conversations, that's when I have consultations, whether it's over the phone or here in the office. That is what I do from nine to five every single day. Cracking through issues with all different types of immigration cases, people all over the world, people from the U.S. Let's narrow down what we've got and see if we can find something that can work.

I have really found that a much higher percentage of those conversations really aren't so much about the legal issues or some specific process, but it's just helping them get a handle on, "What do I need to be worried about, if anything? Am I okay?" And I am extremely candid with my clients and new clients and folks that come in with questions. I go, "Look, man, if you've got a problem, I'm going to tell you. If you don't have a problem, I'm also going to tell you."

In the past month or so, I've done this daily, where I will have someone in my office and I'll be able to clear something up for them that maybe they had a lot of anxiety about. And I'm like, "I know TikTok is so fun, you're just swiping and your algo is haunting you with these things just to stress you out. You've got nothing to worry about. And not only that, but I need you to leave that here on this table in my conference room and move on with your life. You don't have to be afraid of ICE jumping over the walls to get you in the middle of the night. You haven't done anything wrong."

And sometimes, as silly as it may sound, those are less legal consultations, I feel, and more kind of a human-to-human thing. "Look, man, you're okay, and I am telling you, as someone that knows this stuff, that you're okay. If there was something to be worried about, I would tell you. It's not me minimizing it, it's me helping you put that into perspective. Here's my card. You can contact me anytime you have a concern." And me being able to send someone off, hopefully not carrying something with them as they leave my office, that's hugely satisfying to me.

In the context of practitioners and folks with practices, getting a nice perspective on, "Where's my doomsday clock right now? Where should it be?" Even having a quick conversation with someone like me or another attorney with experience in this field can just help you walk away with, "Oh, okay, it's not as bad as I thought," or, "Hey, actually, that is maybe something I should take care of." I just think Googling or ChatGPT-ing by yourself ad nauseum, you're just going to get yourself worked up. You might as well just talk to somebody, bag and tag it if there's an issue, and if not, just be able to walk away knowing that you're okay. And then you'd have an existing relationship with someone that's established, in case something does come up in the future, whether it's an opportunity to sponsor someone and you want to ask some questions, or if something happens and you've got somebody who can help sort through that situation.

Physicians Practice: Anything you'd like to add?

KR: I would say that it's just a lot of compliance right now. Be informed. When you do have a quick minute, fit a call in with somebody, whether it's your own counsel, someone that you've worked with before, maybe someone new, just to get your bases covered, and even just to have a plan in place for staff. Because even here internally, we've had meetings just so that everybody feels that sense of assurance that, all right, someone's on it. We're not just left here alone in the dark. We've got a plan. We've got a go-to. And my whole job now, I feel, is just kind of calming people down, easing anxiety, and just throwing cold water on this panic that just seems to have gripped everybody.