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Immigration-related civil fines for companies reached a record high of nearly $16 million in 2013. Worse yet, employers can be subject to criminal penalties, including prison time, should the government find they engaged in a pattern or practice of hiring, recruiting or referring (for a fee) unauthorized aliens.

In addition to routinely performing in-house audits every six months, and before and after any significant business changes, the following guidelines should help employers navigate the uncertain immigration landscape.

Do Not Delay H-1B Sponsorship Preparation
Consult with immigration counsel as soon as the decision for H-1B sponsorship is made. The H-1B petition filing requires various steps, and most petitions will fall under the government’s annual “cap,” which severely limits a worker’s chances of securing an H-1B visa. Furthermore, there is usually a very short window of time in which to file H-1B petitions before the annual cap is reached.

Do Not Abandon Efforts to Hire Gifted Foreign Workers Because They Are Not Selected Under the H-1B Cap
Explore other immigration routes, including immigration categories for which the foreign worker may be eligible to apply. There is a U.S. visa for nearly every letter of the alphabet, so consider every option.

Do Not Delay Planning for the Future
Start employees’ permanent immigration planning early to ensure workers are able to remain employed in the United States long term. Because most non-immigrant work permits are of limited duration, early planning for and filing of permanent immigration proceedings are critical.

Do Not Fail to Complete Employment Verification Procedures for All Employees
Complete a Form I-9, employment eligibility verification, for all employees, whether they are U.S. or foreign nationals. Employees should complete section 1 of Form I-9 on the date of hire, and the employer should complete Section 2 no later than three business days after Section 1 is completed.

Importantly, in 2014, President Obama announced executive orders that could dramatically change existing U.S. immigration laws and grant work authorization to many people living in the United States without valid immigration status. Despite these developments, the I-9 rules remain in effect and employers should continue complying with them for all employees.

Do Not Tell Employees What Documents to Present for I-9 Compliance Verification

Instruct the worker to select one document from List A on the back of Form I-9, or one document from List B and one document from List C. An employee chooses documents to present for verification, and the employer is legally obligated to accept facially valid documents.

Do Not Fail to Perform I-9 Maintenance
Re-verify work authorization eligibility for workers with temporary work authorization. Identity-confirming documents (e.g., a driver’s license) and certain documents that confirm both identity and work authorization do not need to be re-checked upon expiration. However, all temporary employment authorizing documents (e.g., an Employment Authorization Document) should be re-verified at expiration time. During re-verification, the employee should again be offered a choice of a List A or List B and C documents to present.

Should an employer encounter problems with work authorization re-verification, it should give employees the opportunity to address concerns. This may include having the employee confirm the accuracy of information provided and the chance to follow up with government agencies to correct data.

Do Not Neglect the I-9 Retention Rules
Retain Forms I-9 throughout the worker’s tenure at the company and for one year from the date of termination or three
years from the date of hire, whichever comes later. Although records should be purged as soon as the mandatory retention period is completed, even outdated records should not be destroyed upon receipt of an audit subpoena from the government.

Do Not ‘Pass the Buck’ When It Comes to Immigration Compliance
Consider the hiring and compliance practices of contractors and subcontractors. While federal immigration laws only require employers to complete Form I-9s for employees and not for independent contractors, a business can be liable if its contractors are unlawfully employing undocumented workers and the company either knew or should have known of the contractor’s hiring practices.

Do Not Forget Federal Contractor-Specific Rules
The government’s Internet-based electronic employment verification system, E-Verify, allows employers to compare information provided on the Form I-9 with federal government databases to verify employment eligibility. While an E-Verify subscription is optional for most employers, federal contractors and certain subcontractors are required to use E-Verify to confirm employment eligibility of newly hired workers and existing employees working on qualifying federal contracts.  

It is important to note that employers should continue completing and properly maintaining Forms I-9, Employment Eligibility Verification, for every employee hired after Nov. 6, 1986, even if they are participating in E-Verify.

Irina Plumlee is a shareholder and Elvia Munoz is an associate in Munsch Hardt Kopf & Harr’s immigration practice in Dallas. For more information, email iplumlee@munsch.com or elviamunoz@munsch.com

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