Immigration Compliance: Top 10 for Employers
Originally published by: McGuire Woods — December 14, 2012
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The Obama Administration's continued focus on enforcing the nation's immigration laws by imposing stiff penalties on employers makes the likelihood that you will face an immigration-related inspection in 2013 great. Will your Form I-9s and immigration compliance practices hold up under scrutiny?
With the recent increase in immigration enforcement, significant penalties, and the potential for bad press, employers are well advised to create an immigration compliance program or give an existing program a facelift.
What better way to roll up your sleeves and get started than to focus on the Top 10 Must Haves for Immigration Compliance:
Form I-9 Audit – All employers should conduct a Form I-9 audit annually. Be careful here—we highly recommend hiring outside immigration counsel with expertise in this area as the risk of incorrectly conducting an I-9 audit is great. The Form I-9 is one of the most misunderstood federal government forms. To ICE and the DOJ, the procedure and manner by which the Form I-9 is completed and audited is just as important as the information provided on the form.
Form I-9 Training – All employers should conduct annual Form I-9 training to ensure that those completing new I-9s and reverifying I-9s understand all the nuances involved with accurately completing a Form I-9. Responding to an inspection by explaining that you were unaware of the Form I-9 requirements will not be favorable.
Immigration Compliance Training – In addition to Form I-9 training for employees responsible for the Form I-9, employers should conduct annual immigration compliance training for all relevant employees on the policies and procedures enacted or updated by the employer throughout the year. Employers should also train all hiring managers and supervisors regarding their respective roles in immigration compliance and ensure that all managers understand the nuances of constructive knowledge and to whom they should report information that indicates an employee is not authorized to work in the United States. Human Resources personnel should receive annual training regarding how to respond to such reports to ensure not only that the company avoids discriminatory conduct, but also that it appropriately investigates any information that might be considered constructive knowledge of the hiring or continued employment of an unauthorized worker.
Form I-9 Document Retention and Storage – Employers should have a written document retention policy for Form I-9s and ensure that it is being followed. Employers should also ensure that the Form I-9s are stored appropriately (i.e., separate from personnel folders and separated by current and former employees).
Electronic Storage and/or Electronic Completion of Form I-9s – If an employer has not already implemented electronic storage and/or electronic completion of the Form I-9, it might want to consider whether an electronic I-9 system might be appropriate. If an employer has already implemented an electronic I-9 system, it should conduct an audit annually to ensure that the electronic system complies with all federal regulations. Penalties imposed for violations caused by a faulty electronic I-9 system can be stiff.
Social Security No-Match Letters – Yes, these are still an issue. Employers should ensure that they have a written Social Security No-Match Policy and that they have appropriately responded to any lingering Social Security No-Match letters.
E-Verify – All employers should review annually their relevant E-Verify requirements. Federal contractors should review their contracts to ensure compliance with E-Verify requirements. Private employers who have not yet implemented E-Verify or who have only implemented E-Verify in certain states should review the relevant states' requirements to determine whether they need to revise their E-Verify participation. Employers who have already implemented E-Verify or who have implemented E-Verify in certain states should conduct annual audits to ensure appropriate use of E-Verify and include E-Verify in their annual Form I-9 training.
Employer Sponsored Work Visas – If an employer sponsors employees for work visas, the employer should conduct an annual audit of its use of those visas. Employers can run afoul of the stringent visa-related requirements by taking actions that many employers may not understand are wrong—for example, sending H-1B employees to unauthorized work sites or assigning responsibilities to H-1B employees that fall outside the visa's approved scope.
M&A – Employers should ensure that their business team understands that corporate deals often have immigration consequences and that immigration must be part of their due diligence checklist. Waiting for a deal to close before focusing on immigration compliance can put the surviving entity at risk for substantial penalties.
Contractors and Contracts – Employers should review their contracts with any contractor who supplies labor to the employer's workforce to ensure that the contractor has appropriate responsibility for its own immigration-related obligations. Employers should also review their vendor contracts to ensure that they are complying with their own immigration-related compliance requirements imposed by the contracts. Some companies are beginning to impose immigration compliance requirements through their business contracts.