Erickson in the News: Navigating Employment and Immigration Practice Compliance

Download the full paper by EIG attorney Miatrai Brown here: Bloomberg_Navigating Employment Compliance and Immigration Practice Compliance.

Protecting economic interests specific to the workforce has always been a focus of legislation and executive orders throughout U.S. history. In 1986, the Immigration Reform and Control Act (IRCA)sparked a major revision to U.S. and required all U.S. employersto verify the identity and work authorization of all U.S. citizen employees and foreign national employees authorized to work in the U.S. that were hired after November 6, 1986. The entity tasked with ensuring employers adhere to IRCA is the Immigration and Naturalization Service. 1 The document used to document work authorization and standardize implementation of this law is the Employment Eligibility Verification form, more commonly known as Form I-9.2 Employers are required to not only complete proper verification of identification and work authorization, but maintain documentation of those practices as proof of compliance. Failure to verify such work authorization results in high fines and termination of employment for that employee.

Specific to employers of the foreign national population, in 2009, the United States Citizenship and Immigration Services (USCIS) created the Administrative Site and Verification Program3 to enforce employment and immigration law compliance by all employers engaged in the practice of hiring nonimmigrant employees. Under this program, the Fraud Detection and National Security (FDNS) Unit leads this compliance initiative by randomly selecting employers for site visits to verify employment information about the petitioner and beneficiary. Most recently, the Buy American and Hire American Executive Order signed in 2017, 4 further seeks to protect U.S. economic interest by thoroughly enforcing and controlling immigration laws. The response to this order included heightened enforcement on well known employers such as 7-Eleven. 5

This paper seeks to clarify the intersection of employment law and immigration law compliance in a climate of greater control and stronger enforcement mechanisms imposed by the federal government. This article also discusses the implications companies may encounter, as well as strategies companies should implement to navigate through compliance.