Immigration Compliance for Employers
The global economy has created a need for U.S companies to hire foreign nationals and entities to fulfill their business needs. Be it a need for short-term or long-term specialty workers, intra company transfers, or investment capital, U.S. employers looking at overseas resources are faced with complex immigration management issues and stringent laws that makes it imperative for them to seek professional legal help for their immigration needs.
In recent years, the U.S government has increased its enforcement of immigration policies and worksite compliance in an effort to cut down the employment of illegal and undocumented workers by U.S. employers. The sudden surge in worksite raids and audits by U.S. Immigration and Customs Enforcement (ICE) officers has elevated the need for employers to be more vigilant in their compliance policies and hiring practices in order to avoid government audits, fines, discrimination claims and criminal prosecution.
In implementing compliance protocol employers are often faced with issues related to:
- Hiring practices
- Completing I-9 forms
- Verifying work authorization
- ddressing Social Security mismatch letters
- Maintaining public access files
- Maintaining required immigration documents
Our Work site consulting service for existing and prospective employers includes:
- Guidance and counseling on worksite enforcement regulations and immigration laws.
- Insight into the role of various ICE and other government agencies in workforce enforcement.
- Self-audits to ascertain level of compliance.
- Guidance and counseling on immigration non-compliance consequences.
- Guidance on “safe-harbor” provisions and implementing a compliance protocol to avoid common pitfalls in administrative audits.
Employers must be vigilant of the Immigration Nationality Act and other regulations that prevent discrimination on the basis of citizenship and nationality, among other things. Relatively innocuous ads and recruitment methods may result in investigations and penalties levied by the U.S. Department of Justice and other agencies. An effective hiring and recruitment procedure is essential in maintaining compliance and avoiding costly investigations and protracted litigation.
Employment Verification Procedures (I-9 Compliance, E-Verify and IMAGE)
The implementation of the Immigration Reform and Control Act (IRCA) to cut down illegal immigration into the United States, has made it mandatory for all U.S. employers to verify the identity and employment eligibility of all workers, including U.S. citizens hired to work in the U.S. Employers who do not adhere to the law may be subject to audits, heavy fines and potential negative publicity.
While examining documents, employers are often faced with the difficult choice of verifying the authenticity of the documents as they are unable to differentiate fraudulent documents from ones that appear genuine. To address this problem and to provide employers with a quick verification of work authorization, the United States Citizenship and Immigration Services (USCIS) in association with the Social Security Administration (SSA) introduced the online E-Verification System. An extension of E-Verify is the IMAGE program, which stands for the ICE Mutual Agreement between Government and Employers. IMAGE certification involves numerous requirements including enrollment in E-Verify and submission to an ICE audit. Since participation is voluntary for most employers, the decision to participate in E-Verification and IMAGE should be made after consultation with competent immigration counsel.
An effective employment verification policy starts with training employers of the various laws and regulations; devising a workable procedure; implementation; and proper recordkeeping. Since ICE has been very active in enforcing I-9s, it is imperative that employers have an employment verification system.
Social Security No-Match Letters
A natural consequence of E-Verify is the prevalence of Social Security No-Match Letters. These letters are issued by the Social Security Administration to the employer when an employee’s social security number that is inputted into the system does not match the SSA’s database. The remedy and procedures required to tackle No Match Letters obviously varies from case to case.
Labor Condition Application (LCA) Compliance (Public Access Files, LCA violations)
There are panoply of laws and regulations governing the H-1B and other permanent and temporary work visa programs. These include maintaining public access files, the No-Bench Rule, posting requirements, and dependent employer recruitment, to name a few. Hence, a participating employer must ensure that it is in compliance and moreover, its policies do not have the unintended consequence of discriminating against U.S. workers. Hence, there are many issues affecting employers that hire foreign workers. Our firm provides guidance, training, and self-audit services to employers on various matters arising from the retention of foreign workers.
The United States Department of Labor (DOL) conducts audits of the H-1B program, PERM, and other immigration programs. Although some audits are random, most are initiated through a complaint by an employee or an inquiry by another agency (typically the Department of State). When faced with a DOL audit, the employer should immediately contact a competent attorney to represent its interest. The DOL’s investigators are trained in asking exactly the right questions, which may seem innocent to most employers, but may result in damaging admissions. Documents and information submitted to the DOL should be verified and conveyed in an organized manner. Obtaining legal representation can be an effective tool in avoiding fines and possibly debarment from future immigration programs.