Overview: Whether sponsoring or hiring non-US citizens for employment, employers need to be aware of and comply with federal and state immigration requirements. A key aspect of immigration is the verification process where employers must verify an employee's identity and work eligibility at the outset of employment by completing the Form I-9. However, employers must strike a delicate balance between ensuring an authorized workforce and avoiding discrimination against their employees (or prospective employees) based on national origin or citizenship status. While an employer that knowingly hires or continues to employ an unauthorized individual may expose itself to steep monetary penalties, discriminating against individuals who are authorized to work based on their national origin or citizenship status may also result in similar penalties.
On the state level, employers must be aware of and comply with any state E-Verify mandates requiring employers to confirm the employee's information on the Form I-9. Several states require private businesses to become E-Verify participating employers. To that end, employers, especially multistate employers, should be aware of the E-Verify requirements in each state that they operate in.
When sponsoring a foreign national for employment, employers need to be aware of the petitioning and application process. Further, employers should consider creating an immigration policy setting forth the expectations of the employer and sponsored employee at the outset of employment and identifying which costs are the responsibility of the employer.
Trends: Fines for paperwork and other Immigration Reform and Control Act violations increased significantly, as a result of the Inflation Adjustment Act. These increases are not insignificant. Employers need to be aware of these increases because they could face penalties for paperwork violations for not using the newest Form I-9. Employers need to stay on top of these changes because the penalty amounts will continue to be adjusted regularly for inflation.
Author: Melissa A. Silver, JD, Legal Editor
DOL Secretary Alexander Acosta has announced in a News Release that, after a "thorough review" of the DOL's foreign worker visa programs, the agency will "more aggressively" confront businesses that commit visa program fraud or abuse.
Updated to include forthcoming E-Verify law for certain contractors.
President Donald J. Trump has signed an Executive Order on Buy American and Hire American, establishing as the policy of the executive branch to promote American business and talent. The Order does not have any immediate impact on existing federal policies or regulations.
A new resource that guides employers on how to reverify an employee's work authorization has been added.
This How To details the steps an employer should take when reverifying an employee's work authorization.
On April 7, 2017, the US Customs and Immigration Services (USCIS) announced that the congressionally mandated 85,000-visa H-1B cap has been reached for Fiscal Year 2018 (October 1, 2017, through September 30, 2018).
US Citizenship and Immigration Services (USCIS) has temporarily suspended the premium processing of all H-1B visa petitions starting April 3, 2017, the first day on which the agency would have begun accepting such petitions this year.
President Donald J. Trump has issued a new executive order on immigration entitled Protecting the Nation from Foreign Terrorist Entry to the United States, which takes effect on March 16, 2017.
Employers that want to hire foreign workers for fiscal year (FY) 2018 for positions that require highly specialized knowledge in fields such as science, teaching, engineering and computer programming should get ready now to file H-1B visa petitions with US Citizenship and Immigration Services (USCIS) on April 3, 2017.
HR guidance on hiring immigrants.