The Do's and Don'ts of Immigration Law

Immigration reform remains one of the most controversial issues in American society, and amazing as it sounds, there are many employers who fail to meet their immigration-related obligations under current federal law.

That would be the Immigration Reform and Control Act of 1986, which prohibits employers from knowingly hiring and recruiting "unauthorized immigrants" and criminalizes the act of knowingly hiring them with financial and other penalties.

The two most common mistakes employers make with immigration law come with regard to the H-1B visa process and the Form I-9 that every new employee, including U.S. citizens, must fill out on their first day of employment.

To get the legal take on these errors, IB spoke to two local attorneys: Jonathan Bundy, a member of the Immigration Law Team at the Madison office of Whyte Hirschboeck Dudek, and Glorily Lopez of Murphy Desmond.

H-1B Prep

According to Bundy, the biggest mistake employers make with the H-1B visa authorization program, which pertains to hiring foreign talent, is the failure to plan ahead. Most employers understand the process is going to take a long time, but they don't realize the number of quotas and restrictions involved. As a result, they fail to file in advance of the April 1 deadline, and they miss out on hiring the person they are interested in.

"That is particularly true in high-tech sectors like computer engineering, mechanical engineering, and even fields like accounting," Bundy said.

H-1B is not an acronym, but the title of a section of the immigration law. Under the program, the federal government limits H-1B visa opportunities to 65,000 per federal fiscal year. Employers who fail to get their applications in by April 1 of the year the person will start work – H-1B workers start on Oct. 1, the beginning of the new federal fiscal year – or who are not open to using the immigration process as a means of attracting foreign talent are missing out on a huge pool of highly trained individuals who graduate each year from U.S. universities.

Bundy counsels his clients to start planning six months ahead of the April 1 application deadline because recruiting foreign-born graduates generally follows a strict schedule. While it depends on the program, foreign students generally graduate during the summer months, and most foreign graduates interested in staying in the U.S. will apply for Optional Practical Training. OPT allows them to have legal work status to work in the same field as their degree for 12 months, or 18 months for some science, technology, engineering, and math disciplines.

Under current regulations, these individuals have 90 days to find a job in their field or their OPT status is revoked, so companies must recruit these graduates in that 90-day window after graduation. If the employer finds an employee in OPT status and would like to retain him or her past the expiration of his or her OPT status, the employer must be prepared to file the H-1B petition on April 1. If the H-1B petition is approved, OPT status can be extended until the start of H-1B status on Oct. 1.

Bundy advises employers to start looking to hire foreign talent at least six months before April 1 in order to conduct their recruiting when foreign graduates in OPT status are looking for jobs. "Once an employee in OPT status is hired, the employer needs to immediately start looking toward the April 1 filing date," he said. "While the H-1B petition itself does not take six months to put together, the employer is wise to start planning for how to maintain the foreign-born employee's legal work status at least six months in advance."

In some cases, a company might want to sponsor an employee for permanent residence. Murphy Desmond represents a manufacturing company that recently hired an engineer. That person entered the U.S. on an F-1, a student visa, and after the F-1 expired, the firm worked with the employer to file for Optional Practical Training, which is specific to individuals on F-1 visas. "We assisted the employer in sponsoring that individual with H-1B," she explained. "In order for that engineer to work at the manufacturing company, we worked with the U.S. Department of Labor and filed a petition for a starting date of Oct. 1.

"So we filed an H-1B petition and the petition was approved, and the person will continue to work as an engineer for that company under optional practical training. After Oct. 1, her status will be changed to an H-1B under a category reserved for professionals."

65,000 and not counting

Some would like to expand the program beyond the 65,000 annual limit, but that's politically dicey in a period of lackluster employment growth. It's a politically charged issue despite the fact that employers in certain industries, particularly the technology and science sectors, say they can't find enough American workers to fill the available jobs.

Bundy isn't sure what the cap should be, but he knows the quota is filled faster when the economy is gaining traction. As recently as the 2009 fiscal year, in which the start of the process predated the recession, the Immigration Service received enough applications to meet that cap on April 7, so the cap was reached within a week. For FY 2013, the cap was reached on June 11, 2012.

"Either the economy is actually starting to grow, or there is such a low margin of error for how many of those highly skilled individuals are needed, that if there is any economic growth the cap gets used up much quicker," Bundy explained. "I don't have any numbers to speculate as to how many we need, but even in this weak economic growth, there is such a demand for those highly skilled people that you can sense how quickly the cap is reached each year."

H-1B visas are good for three years and can be renewed for another three years, so they can be a stepping stone for obtaining a green card for permanent residency. In most cases, employers will use H-1B to determine if foreign talent is worth keeping for the long haul. "If they find they want to keep that person, then they usually start the green card process after that," he noted.

In most cases, employers work with a consultant or attorney on the various applications to the U.S. Citizenship and Immigration Service, which is an agency in the U.S. Department of Homeland Security.

Bundy and Lopez cited another common employer mistake regarding those with H-1B status. Since they typically are individuals who come to the United States for graduate school or another type of training, employers forget that they still need a visa to get back into their home country, and there usually is a lack of planning around that. Lopez noted the students actually have to visit the U.S. consulate in their home country, and Bundy said it's not uncommon for them to go through a background check that lasts a couple of weeks.

"The problem we often run into is employers will call me saying, 'Hey, our new engineer is going home for a week. He's getting on the plane in four hours. What does he have to do when he gets there?' Bundy said, chuckling at the timing. "That's simply too late to help them. So even after foreign talent is hired, and the employer is happy with the work they are doing, international travel for those folks can be a headache and they have to plan in advance for how to deal with that."

Route I-9

For other workers, employers often are lax in their Form I-9 compliance, and Lopez said most would benefit from an I-9 compliance audit. Form I-9, which is used to help verify employment eligibility, frequently changes, but there is no excuse for employers not to stay on top of changes because the updated form can be found on the U.S. Citizenship and Immigration Services website. Still, it's not unusual for employers to be using outdated forms, which are no longer sufficient for I-9 compliance.

On Form I-9, the employer must examine the employment eligibility and identify document(s) an employee presents to determine whether they are genuine and relate to the individual, and to record the document information on the form. The list of acceptable documents is printed on the last page of the form.

Perhaps the reason Form I-9 can be out-of-sight, out-of-mind for employers is because the completed form is not filed with U.S. Immigrations and Customs Enforcement (ICE) or the USCIS. Instead, employers must keep Form I-9 for three years after the date of hire, or for one year after employment is terminated, whichever is later. However, it must be available for inspection by authorized federal officials in the Department of Homeland Security, the Department of Labor, and the Department of Justice.

Employers have to complete the most current Form I-9 for every new hire, whether they are foreign nationals or U.S. citizens, Lopez noted. "So many employers don't know this, particularly smaller employers, farmers, and even medium-sized employers," she explained. "You'd be surprised how many of them do not know the employees have to fill out an I-9 form when an employer does a W-4 and a WT-4 for federal and state withholding, respectively."

For employers who are curious about E-Verify, it's an online program that is considered a companion to Form I-9. E-Verify exists to strengthen Form I-9's employment eligibility verification process, and more than 280,000 employers use it to verify the legal status of job seekers and employees. Lopez notes that it's not a mandatory program but a free service that's available to check employment eligibility.

While this is not a universal view, many contend E-Verify's reliability has been improving with time. "It is a voluntary program that ICE came up with so employers can take part if they wish to," Lopez said.

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