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
Updated to include information on a court decision regarding the state immigration worksite enforcement law.
Updated to reflect information on court decision regarding Deferred Action for Childhood Arrivals.
Updated to include information regarding third-party worksite H-1B petitions.
Ogletree Deakins employment attorney Christopher Thomas provides an in-depth look at what HR professionals need to know in light of this marked ramp up in I-9 audits and investigations.
Updated to reflect increase in immigration-related penalties, effective January 29, 2018.
Updated to reflect travel restrictions for certain foreign nationals.
As mandated by the California Department of Industrial Relations, certain California employers must post the California Notice to Employees of Inspection by Immigration Agencies.
Enhanced to improve the comprehensiveness, organization and scope of coverage.
HR guidance on hiring immigrants.