Larry Stringer, partner and head of immigration practice for Dickinson, Wright, Moon, Van Dusen & Freeman in Detroit, hits the highlights of the new law.
What kind of impact does immigration law have on all employers?
One major area that has a direct impact on U.S. employers is known as employer sanctions, stipulating that every U.S. employer must verify every worker's U.S. employment eligibility when the employee begins work. This verification is commonly referred to as the Form I-9 procedures.
So what does the new law say about employer sanctions?
Lawyers many times will recommend to employer clients that they undergo some kind of Form I-9 audit to see if they are in compliance with all I-9 regulations and to make sure the systems they have in place are working. One of the [new law's] provisions provides, in essence, that if the INS finds the employer has made a good-faith attempt to comply with the employer-verification requirements [and] had a technical violation rather than a substantive, ignoring-the-law type violation, the [INS] can issue a warning, which in the past really wasn't [common].
What used to happen?
Many times the employer would end up with a notice of intent to fine. Then the company would have to try to negotiate the fine away to a warning. But now the [INS] has a statutory authority to [issue just a warning], which lends credibility to the recommendation that employers go through an audit.
What's involved in an effective, employer-sponsored I-9 audit?
Typically what I do is have a preliminary meeting with the head of HR and maybe the president to discuss the basic steps of the I-9 and the detail that must be maintained so there's an understanding of the concept. I literally try to enlist the HR staff in going through and examining the I-9s from several different perspectives. Are all of the I-9s properly completed? Are they all signed and dated in the right place? Is the information full and complete and accurate? If not, we identify what forms aren't complete, then try to get the information needed to revise and correct the forms and give them a current date. This helps show a voluntary good-faith attempt to comply with the law.
Then what do you do?
I also cross-check between payroll and I-9s to make sure everyone on payroll has an I-9. I then look at retention requirements for I-9s, which are to retain an I-9 on an employee for at least one year after termination or three years from employment, whichever is the longer. But there's no need to maintain an I-9 after that expiration date. We want to make sure an employer isn't exposed to a sanction because of an I-9 that could have been thrown away and wasn't—and was evidence of not having been properly completed. That's silly to maintain a liability when you can otherwise destroy it.
Is anything else done in an audit?
We examine the employer's procedures. Does the [employer] have a senior-level written policy statement saying, "We will comply with the I-9 requirements, and here's who's responsible for it and here's how he or she's going to do it"? We sit down with an employer and literally trace the paper flow, and then we have training for the person responsible. When we leave, the employer has an I-9 policy statement in place that properly articulates responsibilities and paper flow, and the people have been trained. We hope they're able to self-monitor in such a way that maintains the company's compliance in good faith with the laws. Many times we'll prepare a form and let the HR people go through each of the I-9s, and we'll go through a checklist with them to make sure everything's right.
What other important changes occurred with the new law?
There will be some changes in the documents that an employer can rely on for employment-eligibility verification. The certificate of naturalization and certificate of citizenship are being taken away. And in some cases, foreign passports will no longer be considered valid documents for verifying employment eligibility [beginning September 30, 1997]. The attorney general has authority to specify some other documents that meet the criteria for verifying eligibility. [At press time these hadn't been specified.]
It still seems employers have to walk a fine line between avoiding hiring illegal immigrants and avoiding discriminating against legal immigrants. Will this change?
One of the things that came out in the new legislation, as part of the employer-sanction revisions is: There now has to be a finding of intent on the part of the employer to discriminate against a specific ethnic group or national origin. Whereas in the past, sometimes a case could be made just because somebody didn't get an offer or didn't get hired, or were fired. Then it was, "Well, that's discrimination because I'm of a particular nationality." There will now be a requirement that to prevail on such a claim, there's going to have to be proof on the part of the party claiming discrimination that there was true intent on behalf of the employer to discriminate against that nationality. So that's going to make it more difficult to prove discrimination and to prevail on a claim, which gives some protection to employers.
What would you recommend to employers who must toe the line between illegal hiring and discrimination?
I counsel my clients that they not only have to look at the qualifications of the person irrespective of nationality, but also should have someone looking down over the HR director's shoulders [to judge] what [an action] looks like with respect to the company's recruitment and hiring of all nationalities, all people.
Can you give an example?
Many foreign nationals come to the United States to get a master's degree, and they can get an F-1 visa to study. Many of them hope a U.S. employer will sponsor them for a green card so they can stay in the United States and pursue their careers. [But] an employer doesn't have to hire a nonimmigrant, a person in F-1 status. An employer can say, "I don't hire F-1 students," and it's OK. But [say] it turns out that you as an employer hire many different foreign nationals in the F-1 status, and get visas for them—but there's one nationality that never gets hired. Then, in effect, the employer has become guilty of national-origin discrimination, even though the employer has exercised the right to not hire a person with a temporary F-1.
Any other potential pitfalls employers should know about?
Visas. Any foreign national coming here to work must have a nonimmigrant classification if they're coming here temporarily for a temporary position that has employment authorization as a part of that classification. One of the things that happens is foreign nationals come in, and maybe they're admitted for two or three years depending on the type of nonimmigrant visa. Many times the employers will want to extend these workers' stays for another few years. The new law provides that if any of these foreign nationals should overstay his or her visa expiration date even by one day, the visa becomes void as a matter of law. [Those with expired visas] aren't entitled to be readmitted. They're, in essence, excludable aliens until such time as they return to their home country and obtain a new visa.
Is this the only type of problem employers can run into concerning expiration dates?
No. There's a classification known as "E" visa holders, that dictates that every time a foreign national comes to the United States, he [it's typically a man] is authorized to stay one year. If his wife and children accompany him, they can also stay one year. What typically happens is Mom and the kids stay at home and Dad travels internationally. Every time Dad, the employee, travels and comes back to the United States, he gets a new one-year authorization period of stay. It's not uncommon for the employee and employer to forget about the accompanying spouse and children [until] somebody figures out that Mom and the children have overstayed. In the past the INS would usually cure that by simply authorizing an extension for them. They no longer have that authority.
So what will happen to them now?
Mom and the children are going to have to get visas issued to them by their home country. I think there are going to be some innocent employers who find they're going to have to foot the cost of sending the family home to obtain new visas, paying for travel expenses that aren't in the budget.
Any other advice for 1997?
There are going to be a significant number of regulations coming out this year in terms of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Keep your eyes on the news.
NOTE: Employers who have questions on the Immigration Nationality Act, which prohibits discrimination against legal immigrants, are urged to call the Automated Employer Hotline established by the Office of Special Counsel for Immigrant-Related Unfair Employment Practices. The hotline, 800/255-8155, offers straightforward answers to employers' most frequent questions.
Workforce, March 1997, Vol. 76, No. 3, pp. 108-111.