What will your company do if:
- The government notifies your company that it is to produce all of its I-9 forms and related documents for audit?
- The government notifies your company that it is to produce all of its H-1B public access files and related documents for audit?
- Your company receives a Social Security No-Match Letter?
- Your company is merging with or acquiring another company?
There
is no need for panic if you have consulted with experienced legal
counsel which has resulted in a strategy for responding to these
events. It is more important than ever to have such a strategy in
place.
Increased government investigations and
enforcement are driven by several factors. A poor economy resulting in
layoffs in the labor market always produces increased investigations
and enforcement to protect the American labor market from the adverse
effects of foreign labor. Political pressure for more enforcement
always increases in a poor economy. The resulting press leads to
demands from the public for increased enforcement against illegal
immigration. Finally, in an election year all politicians want to
prove to the voters how tough they are on illegal immigration and
protecting jobs for Americans.
I-9 Compliance:
Since 1986 the law has required that all new employees must present
documents that prove their identification and right to work in the
United States, and the company and the employee must complete a Form
I-9. Paperwork violations (mistakes or failure to complete the I-9)
can very quickly escalate to fines of several thousands of dollars.
The fines for knowingly hiring or continuing to employ unauthorized
workers are more severe. Finally, a pattern or practice of knowingly
hiring or continuing to employ unauthorized workers can lead to
criminal charges. In attempting to comply with the I-9 laws, the
employer must guard against violating the anti-discrimination laws
which could result in fines and back-pay.
H-1B Compliance:
Employers of H-1B professional workers are required to prepare and post
an LCA (Labor Condition Application) regarding prevailing wages, etc.
In addition, such employers are required to keep a public access file
containing actual and prevailing wage information, etc. Failure to do
so can result in civil monetary penalties, back wages and being
prevented from using the H-1B program for at least 1 year.
Social Security No-Match Letters:
A Social Security No-Match Letter is a notice that the records of the
Social Security office do not match with the information being reported
by the employer to Social Security. While the letter states that the
letter, by itself, is not a basis for the employer to take any adverse
action against the employee, the immigration enforcement authorities
take the position that a failure to reasonably follow up could
constitute constructive knowledge of an employee's unauthorized
status. Handling such letters can be a very delicate situation.
Mergers and Acquisition Compliance:
Merger and acquisition transactions give rise to significant compliance
issues for the acquiring or successor company. In addition, the
immigration status of the acquired employees may be affected by the
transaction.
E-Verify: E-Verify is
an Internet-based system coordinated by the immigration and social
security authorities which allows for electronic verification of the
employment authorization of new employees. Subject to some exceptions,
it is still voluntary. Federal contractors must use the system as must
employers of certain F-1 students extending their optional practical
training. In addition, a growing number of states are requiring
E-Verify.
As one can see from the preceding
material, employer compliance is becoming more complex and enforcement
(investigations and audits) is increasing. In order to effectively
deal with these issues and avoid the very severe consequences for
noncompliance, employers must develop a strategy and be prepared. The
most effective way to prepare is to develop a comprehensive compliance
program customized to the employer's specific needs.
Immigration
Solutions provides telephonic and onsite I-9 training, consulting and
document auditing, as well as employer compliance education and
comprehensive program development. If you would like more information
from us on this, please do not hesitate to contact us directly.
