Documentation is key to remaining compliant for immigration employment

As the u.s. labor market evolves and employers face growing challenges in attracting and retaining talent, foreign-born employees are increasingly integral to workforce development. However, employing individuals who are not U.S. citizens or permanent residents can raise complex legal issues, particularly in the areas of work authorization, compliance and risk management. Understanding the legal framework governing immigrant employment is essential for employers seeking to remain compliant while capitalizing on a diverse talent pool.

Employment eligibility and Form I-9 compliance

Federal law mandates that all employers verify the identity and employment authorization of every new hire through the Form I-9 process. Employers must complete and retain this form for all employees hired in the United States, regardless of citizenship or national origin. Best practices include:

• Verifying required work authorization documents immediately upon hire and prior to the employee beginning work.
• Refraining from requesting specific documents or treating individuals differently based on perceived immigration status.
• Periodically auditing internal I-9 records to ensure accuracy and avoid exposure in the event of a government inspection.

Civil penalties for paperwork violations and unauthorized employment can be significant, and Immigration and Customs Enforcement (ICE) has increased worksite enforcement actions in recent years.

Work authorization maintenance and retention

Immigration status is inherently fluid, and employers must remain vigilant in tracking the expiration of work authorization documents and visa statuses. This includes:

• Monitoring visa and Employment Authorization Document (EAD) expiration dates.
• Planning in advance for extensions or changes in immigration status.
• Addressing the immigration consequences of layoffs or job changes, which may require notification to USCIS and trigger grace periods.

For long-term workforce planning, many employers pursue permanent residence (green card) sponsorship. This multi-step process — typically involving labor certification and I-140 immigrant petition filing — requires coordination and strategic timing.

Proactive compliance and internal policies

Given the significant financial and reputational risks associated with immigration noncompliance, employers are advised to adopt robust internal compliance programs. These may include:

• Regular internal audits of I-9 documentation and sponsorship records.
• Training HR staff on proper verification procedures and non-discriminatory hiring practices.
• Legal review of policies regarding layoffs, corporate restructuring, or changes in job duties for visa holders.

Engaging immigration counsel early in the hiring or sponsorship process can help employers avoid pitfalls and remain compliant with evolving federal guidance and enforcement trends.

Immigrant workers play a critical role in today’s economy but employing them requires more than good intentions. Legal compliance is not only essential to avoiding fines and penalties, it is also key to building a sustainable, inclusive and competitive workforce. By implementing best practices, staying current on immigration developments, and seeking legal guidance as needed, employers can navigate the complexities of immigration law while meeting business objectives. 

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Jared Nusbaum is an attorney with the law firm of Zlimen & McGuiness, PLLC in St. Paul, MN. His practice areas include employment law, small business law, litigation, and bankruptcy. Email him at jnusbaum@zmattorneys.com.