To H-1B or Not to Be: Misconceptions That Can Be Costly For Employers

By Frances P. Rayer and Christopher R. Thorn

When it comes to navigating the laws surrounding who is eligible to work in the United States, HR departments might not be asking the right questions.

But who can blame them? With nearly two dozen visa categories having different requirements, conditions, and authorized periods of stay, the immigration process can be tricky and penalties for not complying with work authorization laws are pretty stiff.

Between the 1100 percent increase in federal government audits of employer’s I-9 forms from 2007 to 2012 and the record-breaking $34 million settlement recently paid by IT service company Infosys — the result of alleged systemic visa fraud — it’s clear that the Department of Homeland Security takes violations seriously.

That being said, several of the common misconceptions HR professionals may hold when it comes to determining work eligibility can easily be avoided by asking some simple questions. Below is a look at these, with tips on how to steer clear of any consequences.

1. Are our nearest neighbors exempt?

Simply put, no.

Working with employees based in Canada or Mexico can be a bit confusing. Business visitors are only permitted to perform a very limited set of activities, such as attending conferences, negotiating contracts or settling estates.

The list of permissible activities is slightly expanded for Canadian and Mexican nationals, but the general rule is that performing productive employment in the United States requires a visa. It’s very important to understand the specifics around the restrictions as there are serious civil and criminal penalties for having employees perform productive employment in the United States without the proper work authorization.

2. Is E-Verify essential?

While it’s long been a helpful, voluntary service to determine a potential employee’s work eligibility, E-Verify is increasingly becoming a requirement set forth by many state and local governments.

Nearly half of all states have some form of legislation on the books regarding the use of E-Verify and penalties for not conforming are steep — from ineligibility to receive federal contracts, to the loss of your business license, to disbarment from state contracts.

Understanding the municipal, state and federal laws around E-Verify is another critical component of HR best practices.

3. Is our recruiting team on the ball?

While they very well may be, there’s a fine line between screening applicants for visa sponsorship status and putting your company at risk of violating anti-discrimination laws.

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The U.S. Office of Special Counsel for Immigration-Related Unfair Employment Practices, an agency of the U.S. Department of Justice, has given the green light for only two questions during the hiring process: “Are you legally authorized to work in the United States?” and,“Will you now or in the future require visa sponsorship?

It’s suggested that employers state their hiring policies directly on an employment application to bypass any grey areas during an in-person interview.

4. Does immigration law even apply to my company?

If you’ve had no reason to develop an immigration policy due to your company’s past and current lack of foreign national employees, it’s likely you will need to sooner than you may think.

More than 75 million Baby Boomers will be retiring, and only 46 million U.S.-born workers will be entering the workforce by 2030. Currently, 49 percent of employers in the U.S. find it difficult to fill mission-critical positions – 15 percent higher than the global average.

The need to hire skilled foreign national employees is on the rise, particularly in the STEM areas (Science, Technology, Engineering, and Math), and will continue to trend in that direction for the foreseeable future.

Whether you coordinate recruiting and hiring practices in-house or work with legal professionals to determine best practices, an understanding of the various laws pertaining to work eligibility is critical.

Well-constructed policies not only keep your company protected, they also allow you to benefit from the wealth of talent and skills available in our growing global economy.

Frances P. Rayer and Christopher R. Thorn are members of Buchanan Ingersoll & Rooney’s immigration practice, which was ranked by Best Lawyers as a National “Tier 1” practice for 2013. Frances and Christopher, who are based in Philadelphia, serve corporate clients in a wide variety of industries on employment-based immigration matters. They work with companies to obtain and maintain temporary and permanent work visas for their foreign national employees, and also counsel employers on I-9 and E-Verify issues.

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