With our ever increasingly global workforce, it is becoming critical to have an awareness of immigration related concepts, not only the legal aspects of onboarding foreign hires, but also the “human”, cultural aspects of a diverse global workplace.

Managing a multi-national workforce requires special treatment – from the initial hiring/screening process – through – relocation.

Working with International HR Managers in facilitating the transfer and hiring of foreign employees, we assist in the creation of global mobility and talent acquisition programs to facilitate the transfer and hiring of highly-skilled workers, as well as ensuring compliance with USCIS and Department of Labor requirements. This visa process can be complicated and requires the filing and issuance of an employer-sponsored visa petition. The process generally includes:

  • Advising employers on legal hiring practices to avoid discrimination
  • Analyzing job description and foreign national candidate background to determine best visa strategy
  • Screening foreign national applicants to determine immigration needs
  • Work with foreign national applicants on visa application processing at U.S. Consulates abroad
  • Counsel employers on document and file maintenance requirements

Avoiding Nationality Discrimination in the Hiring Process

It is dangerously easy to engage in employment/hiring discrimination during the hiring process.  There is very specific phraseology that must be used to solicit the information that you need to verify employment authorization.

This is because “U.S. Workers” are protected from employment discrimination based on national origin and citizenship, as well as other Title 7 grounds. This is tricky when recruiting workers in the US.  Employers need to determine an applicant’s immigration status during the hiring process WITHOUT potential liability for discrimination.

Remember: “Look at the Facts, Not at the Faces!”

What you CANNOT Ask an employment candidate:

  • Are you a U.S. Citizen?
  • What country are you from?
  • Do you have a “green card”?
  • Do you have a social security card?
  • If you’re not a USC, what visa do you hold?

Recommended Phraseology to determine work authorization:

“Do you currently have unrestricted work authorization for the US, or would you require sponsorship for a working visa?”
___ I have unrestricted work authorization now and would NOT require sponsorship
___ I have work authorization now but would need sponsorship in the future
___ I would require sponsorship for a working visa

I-9 Compliance

We are living in a culture of unprecedented enforcement. The number of worksite enforcement investigations initiated by ICE has increased by more than 300% from 2017 to 2018. The increase in I-9 audits alone are staggering: 2017 (1,691) and 2018 (6,848).

It is critical that employers have an understanding of the I-9 hiring process, as well as compliance requirements. U.S. Immigration and Customs Enforcement, the agency charged with administering the I-9 program is a well-funded machine that takes a “no tolerance” approach to I-9 completion and maintenance and there is the potential for significant employer sanctions and penalties for seemingly minor errors and non-compliance.

The fact that the I-9 Employer Handbook is over 61 pages long gives insight on how complicated this form can be. The I-9 form is riddled with traps and ambiguity. Given ICE’s policy of strict compliance, employers need to know how to avoid these traps.

Tips on completing Form I-9

  1. Be consistent – Establish uniform company policies regarding I-9s. Treat all people the same when announcing a job, accepting applications, interviewing, offering a job, verifying eligibility to work, and in hiring and firing.
  2. Complete I-9 for ALL employees, including U.S. citizens.
  3. Do not commit document abuse

Do not request more documentation than is required to show identity and employment authorization

  • Do not ask for a particular document to show identity or employment eligibility
  • Do not reject documents that appear to be genuine and belong to the employee
  • Do not treat groups of applicants differently (e.g., based on looking or sounding foreign – “look at the facts, not at the faces”) when completing the Form I-9
  1. Do not complete the I-9 process too early à if you complete I-9 before the hiring decision is made and you do not hire the worker, you could be subjected to charges of employment discrimination
  2. Make sure employee signs Part 1, Employer signs Part 2
  3. Promptly re-verify employment authorization

Many work authorization documents (I-9 Form lists A and C) must be renewed. On the expiration date, you must re-verify employment authorization and record the new evidence of continued work authorization on the I-9 Form.

This is also a good time to ensure that the visa status of your employees is   properly extended 

Procedural Tips

  1. After an employee’s employment ends, keep I-9s on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later.  This means that you must   keep I-9s on file for all current employees. You must also make the forms available to government inspectors upon request.
  2. Conduct preventative internal audits of the I-9 files to see if there is a pattern of violations requiring remediation.
    When? –> change-over in HR, anticipated sale/merger, if evidence of incorrect    practices come to light
  3. Establish a regular training program for HR professionals regarding I-9 compliance rules.
  4. Establish a re-verification tickler system to ensure I-9s are checked in a timely manner.
  5. Centralize the I-9 Form recordkeeping process.
  6. Establish a backup system to ensure timely compliance with I-9 rules when a human resource professional is out of the office
  7. Do not delegate I-9 responsibilities to the most junior person in the office or to the department making the hire
  8. Promptly destroy records not required to be maintained
  9. Do not keep Form I-9 records with the personnel records – create a separate file

Keeping records together could compromise the privacy of employees by allowing government inspectors to review items that are completely unrelated to the Form I-9.

Employers that want to prevent this would have to manually go through the personnel records and pull the Form I-9 paperwork, something that could cost valuable time as the employer prepares for the government inspection.

Keeping the Forms I-9 separate will also make it easier to conduct internal audits to ensure compliance with IRCA and to re-verify forms as needed.

  1. Keep copies of the documents presented by the employee?

Retaining copies of the supporting documents is voluntary unless you are an E-Verify participant. Employers can retain copies of documents and must keep the copies with the specific Form I-9.  Be consistent.

Pros:  Maintaining documentation could provide a good faith defense for an employer in showing that it had reason to believe a worker was authorized even if he paperwork was not properly completed.
It is easier for an employer to conduct internal audits to ensure compliance when they can see what documents were actually provided to the HR representative responsible for completion of the Form I-9.

Cons: Maintaining copies of documents leaves an unnecessary paper trail for government inspectors
Adds to paperwork in I-9 file

  1. Do not refuse to hire someone just because they have work authorization with an end date
  2. Avoid “citizen-only” or “permanent resident-only” hiring policies unless required by law, regulation or government contract. In most cases, it is illegal to require job applicants to be U.S. citizens or have a particular immigration status.
  3. 13. Be aware that U.S. citizenship is not limited to persons born in the United States – individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. Citizenship is granted to legal immigrants after they complete the naturalization process.

For more information, please contact Leonard J. D’Arrigo at (518) 701-2770 or ldarrigo@harrisbeach.com.