Wise employers invest in human capital, and valuable employees with in-demand skills can be found the world over. Your next key employee might hail from Akron, Ohio or Belgium – or a Belgian living in Akron, Ohio. Each of these scenarios carries unique employment eligibility questions, and without proper handling both before and during employment, you risk investing in an ineligible candidate or losing the human capital you’ve worked hard to attract.
Here are the top ten ways to avoid a tussle with immigration laws concerning your prospective and current foreign national employees:
Timely and Diligently Complete the I-9 Form
The I-9, or more formally the Employee Eligibility Verification Form, is the gateway for securing employment in the U.S. The form’s first section, in which the employee attests that he or she is either a U.S. national or an alien authorized to work in the U.S., must be completed on or before the first day of employment. The employee must also provide original documents detailing (a) identity, and (b) employment eligibility, for the employer to inspect and confirm as part of Section Two of the I-9 Form; this must be done within three days of employment.
I’d like to impart two best-practice tips for completing the I-9. First, you must not allow an employee to begin working until the form is completed, even if that means delaying his or her start date. If the information cannot be verified, the worker is ineligible – which presents an issue if they’re already earning a paycheck.
Second, do not accept document copies, only originals and only those of a type listed on the acceptable documents checklist, which can be found here.
Avoid Discrimination During the I-9 Verification Process
Anti-discrimination employment laws aim to avoid the imposition of more demanding requirements on noncitizen applicants. Avoid “document abuse” discrimination by being mindful not to request more documentation than necessary, or request particular documents from applicants of a particular area of origin. The goal here is to be uniform and fair in the application process.
Confirm Maintenance of Eligibility for Foreign Nationals Already in the U.S.
Employers should always confirm foreign nationals’ employment status before offering a position, even if he or she already lives in-country. Although a candidate living in the U.S. may seem to have an easier path to employment, status issues from prior work can cause delay or prohibit hiring. The most common status issue occurs when a nonimmigrant employee has recently been terminated by a prior employer; this may make the candidate ineligible for a change of employer even though his or her period of authorized stay has not expired.
Report Suspicions of Fraud for Declined Applicants
You should always report incidents of suspicious activity relating to a foreign national’s employment application. Doing so will establish a record of cause for declining the applicant, helping you avoid civil penalties for discrimination. “Suspicious activity” in this context can include submission of a false document or a genuine document that does not belong to the applicant. Such activity can be reported by following the procedures outlined here.
Keep Records of Documentation for the Required Retention Periods
The I-9 Form and all accompanying documents must be retained for three years after hiring a foreign national worker, or one year after termination if the employee is terminated before the end of that three-year period. If you’re faced with a penalty regarding worker eligibility, these retained documents give you the best chance for a statutory defense.
Track and Monitor Visa Expiration Dates
Expanding upon #5, it’s not enough to simply maintain verification documents. Employer best practices advocate for docketing deadlines to reverify employment eligibility of workers with time-limited work authorization. It’s also a good idea to request updated documents from an employee at least three months before expiry. This will give you plenty of time to complete the re-verification process and plan for contingencies if an employee cannot provide you with satisfactory documentation.
Ensure that Employees Traveling Abroad Have the Proper Documentation to Return
Understandably, foreign national employees will travel abroad with some frequency. The INS (Immigration and Naturalization Service) has limited the discretion of inspection agents at ports of entry to admit traveling foreign nationals back into the U.S. when they lack the required entry documents. To avoid the disruption of a stranded employee, you should stay up to date on what travel documents are required to ensure safe return to the U.S. When an employee notifies you of his or her intent to travel abroad, provide a checklist of those documents.
Pay Attention to Employees’ Change of Address
Under federal immigration law, relocating foreign national employees must notify the INS within ten days of a change of residence by submitting Form AR-11. When you become aware of a relocating employee, notify him or her of the obligation to inform the INS.
Review Work Eligibility for Changes in Employment
An employee’s nonimmigrant visa petition will outline the terms and scope of work permission. Employers should be aware that any change in employment – promotion, demotion, job transfer, or entity restructuring, for example – can take a worker outside of that scope and defeat eligibility. You shouldn’t hesitate to seek the counsel of an immigration attorney to approve a prospective change in employment.
Establish Company Employment Eligibility Compliance Policies
Structured compliance policies should be set up to ensure adherence to the best practices discussed above. This policy should include detailed procedures, communication channels, recordkeeping systems, and training. As a baseline, be sure to address the following questions when drafting your in-house policies:
- What safeguards are in place to ensure that I-9s are completed by the employer and prospective employee before the deadlines?
- What measures are in place to ensure that document abuse and discrimination do not occur?
- What components make up the file management and deadline docketing system?
- How will the company implement a training system to educate company representatives on compliance?
- Are the application, file system, and re-verification processes handled by trained and qualified company reps?
- Who are the company’s trusted immigration professionals for nonimmigrant work visa employee questions?
This article is meant to be utilized as a general guideline for hiring foreign nationals. There are many nuances to employment law that cannot be covered in such a short space. If you have questions or concerns, you should contact a legal professional. Mark Turner can be reached at email@example.com, or by phone at 440-571-7773.