Important Employment and Immigration Cross Over Issues

Employers are faced with a plethora of employment and immigration cross over issues. Here’s a list of 7 important tips:

1. Don’t include the I-9 with the job application. You can only request that the I-9 be filled out once the applicant has accepted a job offer.
2. Make sure you have a completed I-9 on file for every employee at your company.
3. Keep the I-9’s in binders rather than the employee’s HR file. Have one set of binders for active employees and one set for terms.
4. Employers have begun to see more instances where an employee has recently legalized their status and presented a work permit and new social security number. When the employee was originally hired they presented what were presumed to be valid work authorization documents. Now the employee comes forward and says my real name is different, and here is my new SSN and work permit. In such a case, fill out a new I-9, attach a memo explaining the situation and a copy of the new work permit and social security card, and staple all of this to a copy of the old I-9. Usually, the employer must terminate the old name in their HR information system and process the new one as a new hire. In such a case, the original old I-9 can go into the term binder along with a copy of the memo as well.
5. Anytime you are presented with a discrepancy in the employee’s SSN (i.e. a mis-match letter from any government agency), call the employee in to verify there isn’t a simple typographical error on the original hire paperwork. If not, send them to the Social Security Administration and ask them to bring back verification of their SSN. If no verification is forthcoming within 30 to 60 days, contact legal counsel re probable termination.
6. If an undocumented employee files a labor/employment based claim with the employer, and the employer subsequently discovers that the employee is undocumented, the employee must be terminated since they are not work authorized. However, the employer will be liable for the employment claim that led to the discovery of the undocumented status.
7. When making a job offer to an H-1B or similar non-immigrant visa holder, indicate on the job offer letter that the job is still terminable at will despite the fact that you are petitioning for them for x number of years on the visa petition. Also indicate that you are under no obligation to sponsor the employee for permanent residency, but even if you decide to do so in the future, it won’t alter the terminable at will relationship.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.