William J. Benos of Williams Mullen
At a time when immigration reform is elusive, the common challenge faced by all businesses employing foreign workers continues to be how to hire and maintain a legal workforce. Below are some important areas on which businesses should focus.
Start Off on the Right Foot.
One way for a business to avoid or mitigate immigration risks when hiring workers is to adhere to the existing I-9 employment verification system. By complying with the I-9 system, an employer can avoid knowingly hiring an undocumented foreign worker, and can avail itself of the safe harbor protection against employer sanctions. The I-9 system applies to all new hires (i.e., those hired after Nov. 6, 1986) and those who left employment but who are then rehired. Certain types of workers are not subject to I-9 verification, most notably employees of independent contractors.
Care should be taken by engaging contractors to ensure that their workers perform their work by their own means and methods, and where the employer gains knowledge that a contractor’s worker is not work authorized.
Getting things straight from the outset means that an employer must review a prospective employee’s documents which prove his or her employment authorization and identity, and complete the Form I-9 within three business days of hire.
Employers should also be careful to avoid potential unfair immigration-related employment practices, such as inconsistently maintaining document copies, or insisting on being provided with specific documents to review during the I-9 process.
Preserving One’s Safe Harbor.
Maintaining a legal workforce does not stop after an employer completes the Form I-9. An employer must also attend to “re-verifications” if need be. In cases where a foreign worker’s employment authorization has an expiration date (i.e., where an employee is hired pursuant to an Employment Authorization Document), the employer is obligated to re-verify the employee’s employment authorization on the Form I-9 before the expiration date. Employers should maintain a tickler system to be given sufficient advance reminders of re-verification dates well before they arise.
An employer also should not jeopardize its safe harbor protection by acquiring knowledge that an employee does not have or has lost his or her employment authorization. Some common examples of this is are: (i) where an employee has claimed to be properly documented (i.e., has produced a Permanent Resident Card when first hired) and later asks to be sponsored to become a lawful permanent resident, and (ii) where the employer is notified that an employee’s Social Security Number does not match official records and learns of an employee’s lack of valid immigration status upon subsequent follow up.
E-Verify Compliance.
Some employers may find it desirable or even necessary to participate in the E-Verify system. It is a free Internet-based system operated by the Department of Homeland Security (DHS) along with the Social Security Administration to enable employers to electronically verify the employment eligibility of newly hired employees. Businesses should note that an increasing number of states restrict companies from entering into state contracts or jeopardize their business licenses if they have not verified the identity and immigration status of their workers.
Since the fall of 2009, businesses which enter into federal contracts are required to use the E-Verify system. For businesses with longstanding federal contract relationships, one issue they may need to tackle is whether or not to use E-Verify for their entire workforce. Federal regulations mandate that the E-Verify system must be used for new hires and for employees assigned to a federal contract (i.e., typically those who directly perform the work). Care should be taken regarding the scope and timing of implementing the E-Verify system, as well as in situations where subcontracts are involved, specifically to ascertain which, if any, of such subcontracts may also be subject to E-Verify requirements.
ICE Investigations and Audit Preparedness.
One area which is re-emerging as an area of concern for businesses is the upsurge of investigations and audits by Immigration and Customs Enforcement (ICE). In November 2009 alone, ICE announced an additional 1,000 workplace audits; this was recently supplemented by the issuance by ICE of Notices of Inspection to 180 businesses in five states. In anticipation of further ICE investigations and audits, businesses should conduct their own internal I-9 reviews, properly correct any errors they find, and consider conducting periodic staff training sessions.
Downsizing Considerations.
The following are two instances where downsizing in the current down economy may cause an employer to run afoul of immigration regulations. Employers, notably those who employ foreign workers in what is known as the H-1B visa classification, should be mindful that they are required to notify immigration authorities when an H-1B worker’s employment is terminated prior to its natural expiration. When downsizing, employers must also be cautious of how workforce reductions may jeopardize cases in which the employer is sponsoring an employee to obtain his or her lawful permanent resident status (i.e., ‘green card’).
In conclusion, as is apparent from the foregoing discussion, there are several areas on which an employer should focus its attention to prevent or mitigate immigration risks and problems. As is the case with many things in life, an ounce of prevention is always worth a pound of cure.
Bill Benos is chair of the Immigration Practice Group at Williams Mullen, a full service law firm serving businesses for more than a century. For more information, please contact Mr. Benos by calling 804.420.6402, or by emailing him at bbenos@williamsmullen.com. This article is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.
