July 6, 2018

Employment Authorization & Hiring Immigrants

by Payam Yazdani, Yazdani Law, LLC

Immigration has been a hot topic in the news recently, with the Supreme Court ruling on Presidential Proclamation 9645 (the so-called travel ban) as well as updated policies related to the North American Free Trade Agreement. This leaves many employers wondering whether they are in compliance with the current law.

Employers can be subject to civil and criminal penalties if they employ individuals who are not authorized to work in the United States. The law prohibits employers from knowingly employing someone who is not authorized to work, and from continuing to employ someone after the employer becomes aware that the employee is not authorized to work. Employers are legally required to verify employment authorization for all employees through proper and timely completion of form I-9, which they must retain in their records. An employer should avoid any discriminatory practices and should never request more or different documents than what is described on form I-9 to verify employment authorization. HR personnel must be trained to comply with employment authorization verification requirements.

Employers are strongly encouraged to implement an immigration policy. At its core, the policy should make clear whether the employer will sponsor foreign workers, and under what terms. An immigration policy should take into consideration the anti-discrimination provision of the Immigration and Nationality Act. It is recommended that the policy addresses other specific issues including how the employer tracks important data such as expiration and priority dates, extension eligibility, permanent residence filing, Labor Condition Application information, E-Verify and I-9 reverification. The policy should also describe workflow and document management practices related to immigration filings, points of contact and communication protocols, how filing expenses are handled, how changes in the job or location are handled and how travel plans are managed.

Employers should never express or imply a preference for temporary visa holders over U.S. workers. When hiring a foreign national who requires visa sponsorship, the employer must first determine what type of visa may allow the prospective employee to work for the employer. This can depend on several facts including the type of job and its requirements, the employer and the nature of its business, and the prospective employee’s place of birth, immigration history and credentials including education and experience. The employer must also determine if there are any specific filing dates or deadlines, and the earliest date the employee may be able to start working pursuant to the visa. Other issues such as cost of the visa process, duration of the visa, job location and wage requirements must also be considered. It is best to engage legal counsel from initial consideration of the prospective employee to determine whether a visa is viable under the terms of the employment.

It’s important to ensure that your business complies with all aspects of the current policy, so doing your research and seeking a professional opinion will reassure both you and your staff that your company is following the law.