Mar 05, 2012 QuickCounsel Download PDF
By Sean G. Hanagan, Harry J. Joe, David Jones, Amy L. Peck
Employers are legally mandated to verify that all newly hired employees have authorization to work in the United States and face potential civil as well as criminal penalties if they fail to do so. Employers also face liability for knowingly employing workers not authorized to work in the United States and for failing to maintain and produce the required employment authorization verification form and related documentation upon request by the government in the course of a compliance audit or investigation. Penalties can range from substantial civil fines for improperly completed I-9 Employment Eligibility Verification Forms to criminal sanctions that include stiff monetary penalties and jail time for employers who willingly hire and employ undocumented workers. This QuickCounsel provides an overview of some basic immigration law issues so that in-house counsel can better prepare their companies for audits or investigation.
I-9 Form for Employment Eligibility Verification
The Form I-9 for Employment Eligibility Verification must be completed for all new employees to confirm they are eligible for employment in the United States. The most current version of the form expires on August 31, 2012 and should be used to verify that new hires are authorized for employment until that date. Employers who use older versions of the form face the risk of a noncompliance determination and civil fines.
In 2010 and 2011, over 3,000 employers throughout the country received I-9 Notice of Inspections ("NOIs") from the Department of Homeland Security's Immigration and Customs Enforcement ("ICE") unit. ICE is the federal agency responsible for investigating employers for immigration worksite violations. The NOIs require employers to provide ICE with all of their Form I-9s for current employees, as well as employer business records and records relating to the employment of such workers, and copies of any supporting documents produced by the employee for the I-9 by a specified date, usually by the third day following the service of the NOI. Misplaced or lost I-9s, as well as incomplete and/or erroneously completed I-9s can expose the employer to civil fines or even criminal charges.
Employer Measures to Avoid Problems with ICE
Employers in all industries and of all sizes are subject to I-9 compliance audits and enforcement proceedings. In anticipation of continued scrutiny, employers should take affirmative steps to best position their companies for ICE audits and investigations, including:
There are numerous non-immigrant (temporary) classifications for US employers to consider when pursuing the hire of foreign staff. Employers should consult with an immigration attorney to identify the most appropriate range of options for a given hire, based on the candidate's anticipated role, background, qualifications, and current visa status if already in the US. Some common temporary employment categories include:
The most common non-immigrant classification sought by employers is the H-1B "specialty occupation" category, used for positions requiring a Baccalaureate Degree or the equivalent thereof in professional experience. With a number of exceptions, there is a base cap of 65,000 H-1Bs available for issuance by US Citizenship and Immigrant Services ("USCIS") each fiscal year, so timing considerations can be critical to a successful foreign hire. For more information on the types of nonimmigrant classifications available, please visit the Department of State Temporary Visa description webpage.
With few exceptions, a prospective employee must pass through three distinct phases of the immigration process before being able to work in the US. These stages are outline below:
Procedurally, an employer will file a petition with USCIS by mail or electronically to accord the requested classification to the proposed employee. USCIS will issue an approval notice for qualifying petitions. In some cases, Canadians may present an application for a temporary worker classification at a US border post (discussed below). In other situations, applications may be presented directly to an embassy or consulate abroad without first processing through USCIS. Case processing status and typical USCIS review time can be tracked on the USCIS's website.
Department of State
Once the prospective employee's classification has been approved, most foreign nationals will need to obtain a visa stamp in their passport, which is issued by a US consular post abroad. (Canadians are generally exempt from the visa requirement.) The visa allows the individual to travel into the US for employment purposes. Employers may review Visa Wait Time information for consular appointments and visa processing at each consular post here. In most cases, a visa will be issued within about one week of the appointment date. Employers should be aware, however, that significant delays may occur for security background checks or what is called "administrative processing." Security background checks typically arise when the individual possesses knowledge that may be deemed sensitive or where the individual's nationality raises security concerns. Security delays can sometimes take several months. Administrative processing is not clearly defined, but usually involves a thorough review of the application to ensure that everything is proper and legitimate. Administrative processing frequently takes up to twelve weeks.
Customs and Border Protection
Customs and Border Protection (CBP) inspects the documentation of individuals arriving in the US and, in the case of those requiring visas, examines the visa before admitting the individual. Canadians who are eligible to present applications for temporary worker status at the border will make such applications directly to CBP. Unlike with USCIS, where an officer makes a determination about an application with no interaction with the temporary worker, CBP may vigorously question the applicant about the nature of the employment and sponsorship. Accordingly, it is exceedingly important that the applicant be properly instructed on how to respond to CBP questions and that he or she be fully familiar with the contents of the application. A misunderstanding during this process can result in an application being refused or a status revoked.
Many employers assume that once the foreign worker has arrived in the US, all immigration obligations cease. To the contrary, employers who sponsor foreign workers must ensure that they continue to comply with the terms of the individual's immigration status. Depending on the visa category, the employer may be required to retain what is called a "public access file" containing wage and other data subject to review. The Department of Labor, for example, may review the file to ensure that the employer is complying with applicable wage requirements. USCIS also will conduct site visits to ensure that the employer is properly complying with its obligations under the particular immigration classification. At all times, the foreign employee must perform the duties outlined the in the application submitted on his or her behalf at the specified job location and for specified wage. Changes in any of these aspects of the employment relationship will likely require the employer to amend the application. Lastly, when a worker is terminated, the employer may be required to pay the reasonable cost of airfare for the worker to return home.
Corporate counsel are well advised to work closely with seasoned immigration and I-9 compliance specialists to explore the vast landscape of complex issues this brief summary outlines. In-house practitioners should also keep in mind that regulations and agency policy interpretations change frequently, so knowledgeable attorneys in the field should be your first resource when encountering issues in this area.
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