Immigration Compliance Toolkit

Resources to help employers comply with legal requirements of employment eligibility verification and other immigration-related obligations.

Practical Law Labor & Employment

Employers spend a lot of time and effort understanding their immigration compliance obligations. They must navigate a complex network of immigration laws that impose some obligations on all employers and other obligations only on employers that choose to engage in specific kinds of immigration sponsorship. The penalties on employers that fail to comply with required obligations are significant.

The Immigration Compliance Toolkit provides resources to help employers comply with legal requirements and to minimize liability.

Immigration is principally governed by federal law. However, states and localities are increasingly penalizing employers that hire unauthorized workers in their jurisdictions.

This Toolkit is intended to assist employers in complying with following three major areas of immigration compliance.

Obligations that Apply to All Employers

The Immigration Reform and Control Act of 1986 ( www.practicallaw.com/7-504-5735) (IRCA) requires all employers to:

Some employers must enroll in the E-Verify ( www.practicallaw.com/1-505-6784) employment eligibility verification system managed by the Department of Homeland Security ( www.practicallaw.com/2-506-0648) and the Social Security Administration. All other employers may volunteer to participate in E-Verify. E-Verify allows employers to confirm an employee's social security number and employment authorization in the government agencies' databases.

Employers are facing more Form I-9 investigations, resulting in extensive penalties. Two of the highest forfeiture awards in worksite enforcement history were made in 2014, one for $1.3 million and another for nearly $2 million. In 2013, ICE tied worksite enforcement, particularly of abusive or exploitative employers, to the protection of critical infrastructure in the US (see ICE: Worksite Enforcement).

Obligations that Apply to Employers Seeking H-1B Workers

The H-1B nonimmigrant visa category is one of the most frequently used work visas. Before employers may file an H-1B visa petition, they must obtain a certified Labor Condition Application ( www.practicallaw.com/7-506-9566) (LCA) from the Department of Labor ( www.practicallaw.com/2-501-6354) (DOL).

To obtain a certified LCA, employers must make attestations about the wages and working conditions of both H-1B and US workers. Employers must also maintain a Public Access File (PAF) that is available for inspection by any member of the public. The PAF and other data supporting the employer's attestations are subject to investigation by the DOL.

Employers violating the LCA regulations are subject to significant financial penalties and may be barred from immigration sponsorship for a year or more.

For more information on nonimmigrant visa categories and H-1B visa status in particular, see Key Nonimmigrant Visa Classifications Chart ( www.practicallaw.com/4-505-7942) and Practice Notes, Hiring and Employing Foreign Nationals in the US: Overview: Nonimmigrant Employment-Based Status ( www.practicallaw.com/0-500-9967) and The H-1B Nonimmigrant Visa Classification ( www.practicallaw.com/4-506-6404) .

Obligations that Apply to Employers Filing PERM Labor Certifications

Employers that sponsor foreign worker employees for lawful permanent resident ( www.practicallaw.com/3-507-4188) (or green card ( www.practicallaw.com/4-506-4278) ) status often must begin by filing a PERM ( www.practicallaw.com/2-507-4706) labor certification application. Before filing a PERM application for a foreign worker, employers must test the US labor market for a qualified US worker candidate through a public recruitment campaign. Employers must retain documents showing their compliance with the DOL regulations in an audit file, and must present the documents to the DOL if requested.

Although employers are not subject to monetary penalties for violating the PERM program, they may face:

  • Criminal charges for fraud or willful misrepresentation.

  • Debarment from the PERM program for up to three years.

  • The possible revocation of previously approved PERM applications.

For more information on PERM applications and the green card process generally, see Practice Notes, PERM Labor Certification: Overview ( www.practicallaw.com/0-509-9208) and The PERM Labor Certification Process ( www.practicallaw.com/8-507-1328) and Key Immigrant Visa Classifications Chart ( www.practicallaw.com/3-505-9885) .

This Toolkit provides employers with:

  • Resources to help employers understand their immigration compliance obligations.

  • Tools that they may use to:

    • reduce their risk of compliance violations; and

    • defend against audits and inspections.

Practice Notes

Standard Documents

Checklists

State-Specific Content

 
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