- within Immigration topic(s)
- with Senior Company Executives, HR and Inhouse Counsel
- in Canada
- with readers working within the Basic Industries, Business & Consumer Services and Telecomms industries
You need only turn on the daily news to know that immigration compliance is a critical risk area for employers of all sizes.
Employers face exposure on multiple fronts if they fail to properly comply with the immigration verification requirements, such as completing and retaining accurate Forms I-9 and complying with applicable E-Verify requirements. Even well-intentioned employers can face substantial civil penalties for technical violations. A proactive approach to immigration and Form I-9 compliance is an essential component of corporate risk management.
All U.S. employers must complete and retain a Form I-9 for every employee hired after November 6, 1986. The purpose of the form is to verify: (1) the employe's identity; and (2) the employee's authorization to work in the United States. Federal law requires employers to timely and properly complete, retain, and update Forms I-9. The following are some of the most common, avoidable compliance errors:
- Missing or incomplete I-9 forms;
- Improper document review or acceptance of invalid documents;
- Failure to timely complete Sections 1 or 2;
- Failure to reverify expiring work authorization; and
- Improper storage or retention practices.
Both substantive and technical violations can result in penalties. Penalties for Form I-9 violations can be significant and are assessed per form. Employers may face civil fines, debarment from federal contracts, and potential criminal liability in cases involving a pattern or practice of violations. Additionally, an employer's participation in E-Verify does not replace or substitute the mandatory, strict requirements of the Form I-9 process, and does not excuse or provide a defense for Form I-9 noncompliance. Conversely, immigration enforcement can disrupt business operations and available labor. You may not maintain an employee who is not authorized to work in the U.S.
While increased enforcement continues for some indefinite period, substantive and technical errors are less likely to be overlooked and can trigger much broader investigations into wage and hour practices, employee classifications, and anti- discrimination compliance. So, immigration compliance is not a one-time onboarding task, but rather an ongoing operational obligation.
Employers should also exercise caution to ensure that their Form I-9 and E-Verify practices are applied consistently and without regard to an employee's citizenship status, national origin, accent, or perceived immigration background. Federal law prohibits discrimination in the employment eligibility verification process, including “document abuse” (such as requesting more or different documents than required or specifying which documents an employee must present). Employers should avoid singling out individuals who are perceived to be foreign nationals for additional scrutiny, reverification, or audit review unless legally required to do so. Establishing clear, written procedures; training HR personnel and managers on consistent document review practices; and conducting internal audits that apply neutral, company-wide criteria can help ensure compliance while minimizing the risk of discrimination claims.
Proactive compliance planning, combined with consistent training and periodic review, can dramatically reduce risk and position employers to respond effectively in the event of an audit.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]
