As the debate around immigration reform heats up, many employers are worried.
Their concerns, however, stem less from the issues the media tends to focus on, such as President Trump's plan to build a wall along the Mexican border or illegal immigration. Instead, what’s impacting employers is changing legal immigration rules and procedures.
While all U.S. employers are required to confirm an employee is eligible to work in this country, tighter restrictions, process backlogs and changing laws are making this and other essential parts of the hiring and employment process more burdensome for the average employer.
The following are some of the key immigration laws and government programs that all employers should know about.
Employment work authorization verification
Under the Immigration Reform and Control Act of 1986 (IRCA), employers cannot knowingly hire someone who is not authorized to work in the U.S. This is a continuing obligation to ensure employees are authorized to work in the U.S. for the duration of their employment. Employers use the I-9 form to verify employment authorization as well as an individual’s identity. The form must be completed within three days of employment regardless of whether the individual is a U.S. citizen or not. IRCA regulations are clear that knowingly violating immigration laws will result in penalties.
E-Verify
This government program allows participating employers to electronically confirm the work eligibility of new hires. It’s required for federal contractors and by some, but not all, state and local governments. This program works in tandem with the I-9 and is not a replacement. If an employee is entered into the system and their information does not match the government database, they are given a tentative non-confirmation notice and time to correct the discrepancy. If they fail to do so for any reason, E-Verify will issue a final non-confirmation and the employer must separate the employee.
Temporary work status pending changes
Temporary protected status (TPS) is a program that grants temporary status to nationals from specifically designated countries. This status is usually granted on humanitarian grounds and individuals can obtain work authorizations as well. Approximately 300,000 people are registered for TPS. Last year the Trump administration announced changes that would end legal temporary work authorization through TPS for thousands of employees. Although there is a challenge pending, the Secretary of Homeland Security decided not to extend TPS programs for the following countries: Sudan which was due to end on November 2, 2018, and Nicaragua on January 5, 2019, Haiti on July 22, 2019 and El Salvador on September 9, 2019.
A court challenge by an American citizen in the 9th Circuit in the case Ramos v. Nielsen, has put these end dates on hold and the DHS has temporarily extended TPS for all affected countries while the court case proceeds. To continue in TPS while the case is pending, employees on TPS must follow normal procedures to remain eligible and for registering and applying for employment authorization documents. Employees can use this time to look for alternative lawful immigration status, such as pursuing an employment or family visa or permanent residence.
Should the preliminary injunction be overturned, or the court issues a final ruling in favor of DHS, DHS has stated it will allow a transition period of at least 120 days before implementing and enforcing the TPS terminations. DHS has also said that if the battle in the courts continues beyond April 2, 2019, DHS will automatically extend it through Jan. 2, 2020.
H-4 visas
The DHS has also taken its first step in ending work authorization for H-4 visa holders by sending a proposal to rescind this rule to the Office of Management and Budget. This is a program that allows the spouses of the beneficiaries of H-1B holders who are pending permanent residence, to work in the United States (green cards). The H-1B is the main work visa for highly skilled professional foreign workers. It’s highly sought after and only available to 85,000 people who meet the requirements annually.
Deferred Action for Childhood Arrivals (DACA)
The DACA program provides work authorization to roughly 700,000 people in the U.S. and allows individuals who meet the requirements of the program to apply for two-year renewable work permits. DACA was scheduled to be phased out last March, but multiple legal challenges were filed, and DHS continues to accept applications for renewals for those who have already been granted the status.
Next steps for employers
Be aware of work authorization expiration dates. Any employee using a temporary work authorization whether through a TPS, H-4, DACA or another form, will have their authorization expire unless they are able to renew it or find other legal work authorization. If a person’s status expires, he or she will need to be separated from employment.
Employers should be mindful that national origin is still a protected class under federal law and they should not treat affected individuals differently on the basis of their national origin, citizenship or immigration status. For example, an employer should not place more stringent burdens on employees with temporary work authorization when verifying employment or retaliate against individuals because they assert their rights or cooperate with an immigration investigation. Employers who violate the law may be subject to sanctions including, civil fines per individual or criminal penalties, termination of government contracts, and court orders to reinstate or provide individuals with back pay.
The following are best practices regarding immigration compliance whether for a reverification or a new hire.
· Perform periodic audits of Form I-9s for errors and regularly train employees who handle I-9s. Employers are the custodians of this government form, meaning that the government can come and inspect or audit the forms at the worksite. Therefore, if incomplete or incorrect, this form could cost an employer thousands of dollars in fines.
· Examine original documents in the employee’s physical presence. Only original versions of the required documents are acceptable for an I-9, with a single exception of a certified copy of a birth certificate. When hiring a remote employee look for a local agent to assist you.
· Only keep what you must. Maintain I-9s, preferably outside of the personnel file, for active employees and for terminated employees for one year after their termination date or three years after their hire date, whichever is later.
· Avoid document abuse. The I-9 form requires employees to produce one document from List A, or a combination of one from List B and one from List C. Employers should not accept or require additional documentation and should only retain a copy of the documents used for section two. Keeping copies is optional but if the company does it for some they must do it for every I-9. Being inconsistent or over-inclusive may be considered document abuse and result in liability.
· Don’t tell an employee what to bring or produce for the I-9, just provide them with the instructions.
· Do not provide your employees with legal advice regarding immigration status; direct them to consult with their private attorneys.
· Remind those with expiring work authorization at least 90 days in advance and update the I-9 on the expiration date. If appropriate work authorization from List A or List C is shown, employers can complete the relevant information in Section 3 of an unexpired I-9. The employee does not need to present the same document they presented for initial verification. For example, a person may present a List C document at hire and then present a List A document for reverification.
Given the increase in federal immigration-enforcement efforts and process changes, it’s critical that companies of all sizes stay up-to-date on the latest employment-verification rules. The best bet for employers is to partner with an HR consultant or employment law adviser to avoid any legal pitfalls.
