Immigration Compliance: Seven Deadly Mistakes for Employers

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Based on information provided by the Department of Homeland Security (“DHS”) and various year-end publications about the actions brought against employers for immigration violations in 2012, we have compiled a short list of exposures that employers should have a plan for preventing in 2013.

Here are seven of the most common mistakes that were made by employers of foreign-born residents this year:

1. Failing to Complete and Maintain Proper I-9 Forms. It is “just paperwork” but if you don’t do it right and maintain it properly for government inspectors to see on a moment’s notice, then you can really get in trouble with it.  Even if you have no prior history of I-9 violations, you can suffer significant penalties and fines for failure to handle I-9 responsibilities properly.

2. Hiring Before Filing a Petition for Sponsorship. The government does have ways to figure out when you hired a foreign worker, and if you file your petition for H-1b or other visa only after hiring, the authorities will figure that out and will undertake regulatory action against you. DHS cites this as a very common problem.

3. Employing a Worker at a Different Location than Indicated by Petition. This is another common mistake that seems innocent, but can have a substantial negative impact. Apparently, many employers do not even know that they cannot file a petition to sponsor a foreign worker at a given location, and then transfer that worker to another location (without filing appropriate paperwork).

4. Failing to Properly Pay Foreign Workers. The Department of Labor can actually debar you from participating in the popular H-1b foreign worker sponsorship program if you do not pay wages in accord with all applicable laws and regulations. Thus, getting permission to hire a worker is only one essential part of compliance. Paying the worker properly in accord with labor laws is another essential part of immigration compliance.

5. Failing to Notify the U.S. Citizenship and Immigration Services (“USCIS”) of Employee Termination. If you terminate a worker you have sponsored under the H-1b program, you must notify the USCIS properly and withdraw your H-1b sponsorship. Failure to do so can result in having to issue a pay check for the entire work period approved by the government. An employer must also pay for the reasonable cost of the H-1b worker’s return to his or her home country.

6. Failing to Comply with the “Deemed Export Rule.” Employers in the defense, aerospace and technology industries must be particularly wary of their federal obligation not to allow foreign persons any access to regulated intellectual property or technology that the U.S. government does not want exported to certain other countries.

7. Failing to Comply with State Immigration Laws. Many employers are not aware that there are many state law requirements with regard to immigration that may affect employment. Thus, Illinois employers must remember to follow Illinois state immigration laws too.

If you are an employer or an employer’s agent responsible for immigration compliance, do not hesitate to call our office at (847)564-0712 for an appointment to speak with a qualified lawyer if you need help. You can also check out our immigration law Website for more information.