Here are the top eight things HR managers should know about U.S. immigration law:
1. Form I-9, Employment Eligibility Verification
- Every U.S. employer must complete a Form I-9, Employment Eligibility Verification, each time a person is hired to perform labor or services in the U.S. in return for wages or remuneration.
- An employer must make I-9s available for inspection by the Department of Homeland Security, Department of Justice, and Department of Labor
- An employer may be liable for civil money penalties, or even criminal penalties, for failure to properly complete I-9s.
2. Immigration-Related Discrimination
- Employers are prohibited from discriminating against employees on the basis of national origin or citizenship status.
- Employers may not request identity or employment eligibility documents other than those listed on the I-9.
- Employers may not refuse to accept identity or employment eligibility documents that appear facially valid.
3. Sponsoring Nonimmigrant Work Visas
If an employer sponsors nonimmigrant work visas, the company needs to be familiar with its resulting obligations. Here are just a few examples:
- B-1 visitor for business: An employer needs to be familiar with the scope of activities that are allowed in B-1 status. While meetings, trainings, and conferences are allowable, regular work is not. The employee must continue to be employed and paid by the company abroad (with the exception of reimbursement for expenses, which may be paid by the U.S. employer).
- H-1B temporary workers in specialty occupations: The H-1B is a flexible visa for hiring professional. However, the employer must taken on several obligations, including but not limited to: paying the prevailing wage for the occupation in the geographic area; maintaining a file with information about the employment, available for public inspection; notifying USCIS if an H-1B worker is laid off; amending the H-1B petition if there are material changes in employment terms and conditions such as a decrease in hours or salary. Our law firm is available to audit and advise on compliance with these requirements.
- J-1 exchange visitors: A company may be able to obtain visas for foreign trainees, sponsored by a third-party entity approved by the State Department. A company that frequently uses J-1 visas should consider applying for its own approval from the State Department to sponsor trainees, researchers, and others.
- L-1 intracompany transferees: Companies that are frequent users of L-1 visas should consider filing a “blanket petition,” which eliminates the need for each individual to file an L-1 petition with USCIS.
A company that sponsors nonimmigrant visas also needs to be familiar with international travel issues. Every time that an employee with a nonimmigrant visa travels abroad, there is a risk of refusal of a new visa or re-admission to the U.S. There is also a risk of delayed return due to appointment scheduling and security checks. Our firm can evaluate these risks and advise on how to ameliorate them.
4. Sponsoring a Green Card
Most non-managerial employees are required to go through a process called a labor certification application as the first step in becoming a permanent resident. This process requires recruitment efforts by the employer and proof that no qualified U.S. worker is available to fill the position.
5. Mergers & Acquisitions
If your company is involved in a merger or acquisition, the company should perform a due diligence investigation that includes analysis of the current immigration status of the employees, a determination of the impact of the corporate change on their status, and filing of any necessary applications to maintain employees’ status.
6. Corporate Immigration Policy
A company with ongoing immigration law concerns should create a written immigration policy. Some topics to cover include:
- Under what circumstances the company will sponsor a nonimmigrant visa and permanent resident status, engage outside counsel, and pay fees related to the visa process?
- Who is responsible for determining the appropriate visa to use for those employees?
- Under what circumstances is use of the B-1 visa or visa waiver appropriate?
- Once a visa has been obtained, who monitors the employee’s work (including changes to responsibilities, pay, and work location) to ensure it complies with the visa petition or that an amendment is filed?
Add language consistent with your immigration policy to your job application forms, offer letters, employment contracts, internal job transfer requests, and termination packets.
7. Hiring an Immigration Lawyer
It is prudent for an employer to utilize the services of a U.S. immigration lawyer experienced in dealing with business immigration issues. The lawyer can help an employer navigate through visa application processes and comply with its immigration-related obligations.
8. Periodic Audit
Our firm can help your company conduct periodic audits of its policies and practices to ensure compliance with current law, identifying areas where additional training to HR staff would be useful.