Employers continue to weather ongoing economic problems in the United States, as well as immigration-related scrutiny, which has increased over the past few years. As U.S. companies consider their projections and proposals for 2012, their attention should also turn to matters that can facilitate smoother operation from an immigration perspective. Employers should be focusing on immigration compliance and on careful documentation of compliance in their business practices. Following are suggestions that will prove helpful to many employers.
Importance of Employee Handbooks
The January 8, 2010 issuance of a U.S. Citizenship and Immigration Services (USCIS) memorandum on the need for employers to demonstrate "control" as an element of the employer-employee relationship created an uproar within the immigration community. The impact of that memo continues, although many employers have worked through some of the difficulties faced initially. Within the consulting industry, employers able to document internal procedures with respect to their employees in a formal manner have been most successful in addressing the memo's standards. That is, prior to the memo, employers in the consulting industry had a variety of methods in place for interacting with and having appropriate control over their employees. Some employers excelled at formalizing these procedures, however, in ways that satisfied the USCIS's need for clear documentation.
One important item, frequently required in USCIS requests for evidence (RFEs) in H1B cases, is an employee handbook. Employee handbooks are commonly utilized by employers in the United States to distribute and set out company policy and procedures. The employee handbook may be pertinent to issues of employer control over company employees, as it addresses matters such as: sick or vacation leave time procedures and requests; leave time procedures in other circumstances, including jury duty, bereavement, and Family Medical Leave Act absences. The employee handbook also may address deadlines and requirements for submission of timesheets and other documentation requirements. It is likely to address the procedures for performance evaluations, salary reviews, discipline and termination, as well as many other day-to-day employment procedures and policies.
Contents of the employee handbook set out the terms of employment, often to a greater extent than the offer letter or employment contract. If the handbook is complete and detailed, it serves as evidence of the genuine employer-employee relationship that can be persuasive when submitted to the USCIS.
Handbook Risks: Keep Up to Date and Compliant
While the handbook can be helpful in establishing the employer's formalized procedures for monitoring and controlling employees, there are potential danger zones in its contents. The employers' procedures, of course, must be compliant with general employment law and, where applicable, the H1B program requirements. Employers should have their employee handbooks reviewed by legal counsel at regular intervals to determine if changes are needed in their policies and procedures, followed by appropriate changes within the handbook. Without careful legal review and updates, employers run the risk of providing the USCIS with documentary evidence which could leave the impression of non-compliance. Submission of an older or outdated employee handbook, or one that was not prepared with consideration of all appropriate legal requirements, may lead to denials of H1B petitions and related problems.
Mergers and Acquisitions
If an employer has gone through a corporate change, whether through purchasing a competitor, merging with another company, or shutting down one part of its businesses, immigration requirements with respect to the employees should have been considered. If this is not done as part of the legal aspects of the corporate change, immigration law problems may be triggered with no obvious warning.
In the case of mergers or the transfer of non-citizen employees from one company to another, careful review of related immigration law requirements is warranted. Employers who are in the process of filing PERM applications or I-140 petitions when a corporate change either occurs or is being contemplated, should consult with an experienced immigration attorney to understand the consequences of different corporate changes. Similarly, employers who have sponsored nonimmigrant workers have a variety of considerations and requirements to attend to during corporate changes. Even employers whose workforces are made up entirely of U.S. workers must consider I-9 employment verification matters related to corporate changes. Thus, it is best for corporate attorneys and immigration attorneys to coordinate during periods of corporate changes. If this did not occur at the time, or questions still remain following a restructuring, the matter should be reviewed without delay to identify and address any potential problems.
I-9 Re-Verifications and Increased I-9 Audits
Over the past several years, Immigration and Customs Enforcement (ICE) has dramatically increased the number of companies to which it has issued notices of inspection (NOIs) of I-9 employment verification forms. In July 2009, ICE announced that a record 652 NOIs were issued to companies across the United States.
It is important for employers to ensure that they are properly complying with the I-9 employment verification requirements, which have been in place since 1986. Although these requirements have been in place for many years, enforcement and the diligent investigation of potential violators is a more recent development.
One ongoing compliance matter is the need to re-verify the authorization of employment of some employees. During the I-9 completion process, if an employee indicates that she/he has employment authorization for a limited time or, if she/he offers a document that indicates that the work authorization will expire on a certain date, a re-verification of the I-9 is likely to be necessary before the expiration date. It is important that the employer carefully tracks these expiration dates and completes the I-9 re-verifications when needed.
Employers should also track the hiring and termination dates of employees, as these determine the retention requirements for I-9 forms. Many companies are careful about discarding the I-9 forms at the time when it is no longer required that they be retained. While this is a good internal housekeeping practice, it may be due in part to the fact that ICE can issue fines based upon I-9s that are retained by employers for both current and former employees.
Public Access Files
Employers of H1B, H1B1, and E-3 employees must keep public access files (PAFs) with documentation pertaining to wages, benefits, and compliance with notice provisions. In the event of certain corporate changes, the PAF must be updated to include an acquisition memorandum regarding assumption of immigration liabilities. Employers should review their PAF procedures to make sure they are fully compliant. They should also consider the retention requirements as explained more fully in our blog, maintaining an H1B Audit Public Access File (PAF).
It is wise for employers at the end of each year to tie up loose ends, such as completing any missing portions of H1B public access files, re-verifying any I-9 forms that show expiring work authorization, and updating the required actual wage statements in the PAFs for any H1B employees who have been given annual pay increases. If they have not done so already, U.S. employers should take the steps needed to establish good tracking methods to ensure their full compliance with the requirements of the H1B program, I-9 requirements, as well as any other immigration-related obligations.