Compliance Tips for Employers

Tips for Employers Who Want to Mitigate Compliance Risk

  1. Employers should conduct a risk assessment of all job applications and personnel policies.
  2. Employers should understand acceptable interview questions involving citizenship and immigration status.
  3. Employers should sponsor job applicants for a visa with minimum of contract liability.
  4. Employers should establish procedures to minimize risk of terminating non-citizen employment.
  5. Employers should manage issues that arise during downsizing or restructuring.
  6. Employers should make clear in the job application that providing false information and documentation is grounds for immediate termination.
  7. Employers should ensure that the Form I-9 is completed for and documentation is presented by each employee within three (3) business days of date of hire.
  8. Employers should establish a policy as to whether or not to keep copies of documents reviewed.
  9. Employers should ensure that employees who are responsible for maintaining Forms I-9, are adequately, regularly trained and supervised.

Employer Tips Specific to H-1B Workers

  1. Avoid benching. An employer must continue to pay the H-1B worker wages regardless of whether or not there is work to do!
  2. Put a process in place whereby the employer notifies the U.S. Citizenship & Immigration Services (USCIS) when it terminates employment for an H-1B worker.
  3. Put a process in place whereby the employer is prepared to provide payment for return transportation home if employment for an H-1B worker is terminated.
    Note that Immigration & Customs Enforcement (ICE) will share data with companies on efforts to circumvent legal hiring processes and will review companies’ hiring and employment practices to correct isolated, minor compliance issues detected.
  4. If an employer must undergo lay-offs, this may impact the Application for Permanent Employment Certification (PERM) process and H-1B dependent employers.
  5. Employers must be prepared to amend petitions when there are issues related to successors in interest, name changes, job and location changes.
  6. Employers should understand green card portability and how this rule impacts the hiring process.
  7. Employers must understand effect on ability to pay and the need to retain necessary payroll records and financial documents.

Tips for HR Professionals and/or Hiring Managers

  1. Ask if the job applicant can demonstrate at time of hire proof of permission to work in the U.S. and eligibility to work for the company.
  2. Do not specify what documents the applicant must show you.
  3. Do not ask questions regarding marital status, gender, sexual orientation, health or handicap, religion, age, ethnicity, racial or citizenship status.
  4. Indicate in the employment contract that the job offer is "contingent upon securing appropriate employment authorization".
  5. Include repayment provisions but be aware of the limitations. There is no business expense recovery for H-1B visa employees but an employer may recover liquidated damages. There is no cost recovery with the labor certification process (PERM) but an employer may recover the costs for the remainder of the green card process.