Immigration Issues Every Employer Should Know About

Immigration affects every employer no matter how large or small. The two primary immigration concerns for employers, even if the employer does not sponsor employees, are the job application and the Form 1-9. Improper handling of these two forms can devastate employers through discrimination charges and Form 1-9 audits leading to civil sanctions or even criminal prosecutions. However, employers with proper procedures in place can protect themselves and create a record of compliance that avoids negative presumptions that can cause significant harm. The first area of employee relations where immigration becomes an issue is the employment application. Employment applications have traditionally attempted to address immigration issues through a variety of improper questions that may lead to an inference of discrimination. However, various government agencies, including United States Citizenship and Immigration Services (USCIS), the Office of Special Counsel (OSC), and the EEOC have endorsed specific questions on job applications that create a safe harbor for employers. Employers may ask the following two questions on a job application:

  1. Are you legally authorized to work in the U.S.?
  2. Will you now or in the future require sponsorship visa status (e.g., H-1B status)?

To enjoy this safe harbor these questions have to be asked together and can only solicit a “yes” or “no” answer. During the interview, the employer can ask what type of sponsorship will be necessary if the candidate answers “yes” to both questions. The next immigration issue that employers must deal with is the Form 1-9. This simple, one-page form has resulted in a tremendous burden on employers. A large part of the trouble with the Form 1-9 is that it appears so innocuous. It is usually handed out with the W-2 during the new hire process and left for the employee to complete. However, the importance of this form cannot be overstated. Form 1-9 enforcement has increased exponentially in the last four years with employers suffering massive civil penalties and criminal sanctions. Many of the errors in completing the Form 1-9 that lead to sanctions are the result of employers not giving this form the weight it is due. For example, the majority of fines occur because Section 1 is not complete fully and properly. Another area of concern is in Section 2. Employers often dictate what documents an employee should produce to save time. Instead, employers are required to give the list of acceptable documents to the employee and let the employee choose which documents to produce. Often employers obtain too much documentation, taking and copying whatever documents the employee produces. The requirements are a List A document or a List B and List C document. Retaining more documents than is required can result in civil penalties and charges of discrimination. Finally, many employers improperly store the Form I-9s. The Form I-9s should be stored in three binders; binder one should be for current employees, binder two for past employees, and binder three for copies of binders one and two. During an audit of an employer’s Form I-9’s, the auditing agent takes binders one and two. Binder three then provides employers with an opportunity to defend against any charges that come up before binders one and two are returned. This is a brief overview of immigration concerns and necessary procedures for every employer. As with all legal issues, if there are any questions about these matters, consultation with knowledgeable legal counsel is a must.

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