U.S. employers must comply with a variety of laws in the conduct of their businesses, including immigration laws. Employers are required to complete, maintain, and retain certain immigration forms as part of the hiring process and verify that an employee is authorized to work in the United States. In addition, employers can be held liable for violations of the anti-discrimination provisions of the Immigration and Nationality Act, which protect U.S. citizens and certain persons authorized to work in the U.S. from employment discrimination based on citizenship or immigration status. Employers must also comply with laws that protect non-U.S. citizens who are authorized to work from national origin discrimination, unfair documentary practices relating to the employment eligibility verification process, and from retaliation. With the introduction of E-Verify, an online verification system to determine whether workers are eligible to work in the United States, the immigration compliance framework within which employers have to operate has expanded. In certain instances, employers can be fined over $14,000 per employee for knowingly hiring persons who are not authorized to work in the United States.
As part of the employment eligibility verification process, employers must complete Form I-9 for each employee hired after November 6, 1986. Employers cannot specify the documents employees must produce as proof. For employers using an electronic Form I-9, the employee information in Part I of the form cannot be pre-populated, whereas, the employer’s information can be. By law, employers must retain Form I-9 for three years after the employee is hired or for one year after termination, whichever is later. Form I-9 can be stored in paper or electronic format, but must be made available upon request by the government, within 3 days.
Following completion of employment eligibility verification, the employer could receive an Employer Correction Request (no-match letter) from the Social Security Administration or a letter regarding employment verification forms from the Department of Homeland Security. These letters could form the basis for an immigration enforcement investigation or be used as evidence of the employer’s constructive knowledge that the employee was not authorized to work. There are safe harbor provisions that the employer can follow to minimize risk in any future compliance action by the government. Minikon Law, LLC provides counsel on these compliance and enforcement issues.
Worksite visits related to immigration petitions for temporary workers have become part of the landscape of doing business in the U.S. The Fraud Detection and National Security (FDNS) Directorate of the United States Citizenship and Immigration Services conducts unannounced site inspections to verify information contained in certain visa petitions. Information obtained during a site inspection is used in deciding on the petitions. During the visit, the inspector verifies information, including supporting documents submitted with a visa petition, takes photographs, reviews documents, interviews human resources and legal department staff members, and any others involved in the filing of the petition; the inspector could speak with the visa beneficiary as well. Minikon Law, LLC can assist your company in responding to a site visit. If your company has been visited, contact Minikon Law, LLC immediately for assistance in crafting an investigation response plan. Although site visits are unannounced and cannot be planned for in advance, your company can be prepared for such a visit if compliance is addressed as part of the petition process.
When you hire Minikon Law, LLC to represent you in your compliance case, we do the following:
- Defend your company against any charges or fines, and aggressively pursue a reduction in the amount assessed
- Provide counsel regarding best practices for avoiding future violations
- Advise on the maintenance of required documentation
- Audit files, if needed or requested, to ensure compliance with the immigration laws
- Represent your company before the various government agencies involved, including the Office of the Chief Administrative Hearing Officer, USCIS, and the Administrative Appeals Office
Watch this video on employer obligations and federal protections against immigration-related discrimination in the workplace.