by Lisa Sotelo
Immigration and employment attorneys navigate in overlapping practice areas. The shared turf of the employment relationship is something that should align our parallel universes more closely, particularly given the exposure to liability as our government works to both toughen immigration enforcement while at the same time strengthen worker protection regulations.
In representing both management and labor forces, we generally engage with the same decision makers in the human resources and legal departments. We each manage issues that involve avoiding conflicts of interest, defining the scope of legal representation, and complying with government regulation of the employment relationship. Further, our specialties are code-based and affected by sporadic issuance of policy memoranda or press release that serve as binding guidance. We must each navigate through administrative and bureaucratic agencies that are so dispersed in its oversight responsibilities that often conflicting or inconsistent decisions make workforce prediction and planning a minefield of uncertainty. What follows are some common overlapping areas that should be considered by both practice areas.
I-9 Reverification, Record-keeping & Anti-Discrimination Compliance
The Immigration Reform and Control Act of 1986 (IRCA) requires that employers verify that all employees, regardless of nationality, hired on or after November 6, 1986, are authorized to accept employment in the U.S. In cases involving foreign nationals with temporary work permission, employers must ensure that those employees maintain valid work authorization through the duration of their employment. The form used to collect this data is Form I-9, a deceptively simple document often bundled with new-hire onboarding materials. However, slack corporate compliance policies on employment eligibility verification can produce significant error rates in Form I-9 completion, which in turn can result in civil and criminal liability, brand damage, and workflow disruption when things go amiss. Additionally, with the ebb and flow of changing administrations and their respective priorities regarding immigration and worksite enforcement, employers may be faced with worksite raids and unwanted negative press coverage for non-compliance.
In addition to potential liability for knowingly hiring unauthorized foreign nationals, employers are also subject to liability in other areas: federal contractors face one-year or longer contract bars for knowingly hiring unauthorized workers; an employer’s tax and withholding obligations can be affected by I-9 verification issues; and discrimination claims may be brought for employer over-documentation or requesting particular documents in the I-9 verification process. Forethought in this area is important, particularly if an employer must defend itself against an I-9 investigation by the United States Citizenship and Immigration Service (USCIS), the Department of Labor (DOL), or the other law enforcement agencies. Developing a comprehensive corporate policy on employment eligibility verification that incorporates both immigration and employment law considerations is key.
Professional Employer Organizations
Outsourcing HR functions to professional employer organizations (PEOs) can result in situations where a foreign national, for whom the company submitted a petition with USCIS, may actually be paid and nominally employed by another entity. Outsourced payroll and HR functions puts the PEO at risk of being deemed a co-employer for immigration purposes, and this can also have negative implications for the foreign worker and his petitioning employer. Carefully defining the employer-employee relationship may involve a closer look by experts in both practice areas.
Immigration legal issues are prevalent in employment suits. Terminated workers may claim that the firing arose out of retaliation for objection to violation of immigration law, namely, failing to pay H-1B required wages or the prevailing wage in a labor certification case. Workers’ compensation and back-pay claims brought by foreign nationals make clear that immigration status—lawful or not—does not preclude employer liability. In other claims involving negligent hiring, negligent entrustment, wrongful death, etc., the courts have found that the probative value of immigration status, even if marginally relevant, is highly prejudicial and generally not admissible in an employer’s defense. Further, English-only policies can be wrought with liability if not carefully constructed and compliant.
Employment-based Immigration Sponsorship
Nonimmigrant work visa categories provide strategic hiring options for professional workers, corporate transferees, investors and traders, students and trainees, and workers with essential skills or specialized knowledge. USCIS also authorizes employment for various other foreign nationals such as those seeking asylum or pursuing permanent status through a family member, to name a couple. Employment attorneys must keep close watch on changed employment circumstances that would affect a foreign national’s work authorization such as promotions, demotions, job transfers or entity restructuring. Failure to understand the terms of the sponsorship and the immigration implications of changes in the employment of a foreign national can result in considerable liability for an employer.
Understanding and identifying the overlap of immigration and employment law is critical to providing innovative strategies for your clients. Aligning with counterparts in both practice areas strengthens your arsenal and sharpens your talons—both needed to win cases and assist in accomplishing your clients’ overarching objective of global mobility management.
Lisa Sotelo is a Partner at Elise Healy + Associates, pllc and can be reached at email@example.com.