Immigration impact on employment practices

In a climate of uncertainty about immigration, it is only natural

to consider whether your employment practices are in sync

with current immigration requirements. There are many

situations in which consideration of the topic is crucial and, for

those companies failing to

results can be devastating. Legislation passed in the aftermath

of Sept. 11 further complicates matters.

Removal

Any persons who are not U.S. citizens may be subject to removal from the United States under certain circumstances; even lawful permanent residents (LPRs) are subject to removal. It is not solely a matter of concern to employees in nonimmigrant visa status. It is not even necessary that a noncitizen have committed a legal infraction to risk removal from the United States. Something as simple as moving one's residence may. subject one to removal from the United States if - while an LPR or nonimmigrant alien - he fails to file a form AR-11 with the Bureau of Citizenship and Immigration Services (BCIS) notifying the agency of his change of residence within 10 days of the move.

Sponsorship for LPR status

The second trap for the unwary is agreeing to sponsor an employee petitioning for LPR status. Before agreeing to offer sponsorship, a complete understanding of the responsibilities and penalties for failing to comply with the Immigration and Naturalization Act is essential. Any form submitted to either the US. Department of Labor or to the BCIS constitutes a representation made to a government official and misrepresentations - innocent or otherwise - are subject to criminal penalties.

Suffice it to say, agreeing to sponsor your employee in his or her quest for LPR status may have a devastating impact on your company that goes far beyond its employment practices.

Employing a nonimmigrant alien

Employment of a nonimmigrant alien (one who has not obtained LPR status) may have many benefits for the employer, but the employment of one not lawfully authorized to work in the United States can be financially and legally destructive. Although an employer should not shirk from employing aliens, adherence to the law is necessary to ensure that only persons lawfully authorized to work in the United States are employed.

At the time of hire for any employee - U.S. citizen, LPR or nonimmigrant alien - the employer must undertake the following:

* Obtain photocopies of identifying documents as set forth on the back of the I-9 form. The documents are set forth in three columns and the employee may produce one item from column A, or one each from columns B and C; these documents verify the prospective employee's citizenship and authority to work.

* If the prospective employee is a nonimmigrant alien and has provided only his passport for identification, obtain photocopies of the employee's passport, visa and I-94 form (attachment to the passport indicating the length of time the alien may remain in the country) in addition to a document demonstrating his authority to lawfully work in the United States.

* Fully complete the 1-9 form and maintain it in a separate file.

* The employer should also take note of the expiration date of the visa and passport and, when approaching the expiration date, communicate with the employee to ensure that the documents are timely renewed. If the documents are not renewed within a reasonable time, the employee may lose his right to work or to remain in the United States. Continuing to employ the nonimmigrant alien will subject the employer to monetary, administrative and perhaps even criminal penalties.

"It is a good idea to periodically perform an "I-9 audit," essentially making sure that work authorizations, passports and/or visas remain in order for each nonimmigrant alien employee. It is also advisable to perform this audit whenever there is a change in ownership of the business because it may be necessary for the new owner to re-petition the BCIS to continue to employ the nonimmigrant aliens. These safeguards and warnings are equally applicable to private individuals who may employ nonimmigrant aliens to perform household maintenance and care services.

Although it may be inconvenient to have to alter your employment practices to accommodate immigration requirements, failing to do so may have a significant adverse impact upon your business. If you are in doubt as to whether your business is in compliance with current immigration requirements, please consult your legal counsel.