10 Ways to Avoid Immigration Problems with Employees

Avoid staff immigration headaches by adhering to the 10 guidelines below.

Wise employers invest in human capital and valuable employees with in-demand skills can be found the world over. Your next key employee might hail from Barberton or Belgium—or a Belgian living in Barberton. Each of these scenarios carries unique employment eligibility questions, and without proper handling both before and during employment, you risk investing in an ineligible candidate or losing the human capital you’ve worked hard to attract.

Here are the top 10 ways to avoid a tussle with immigration laws concerning your prospective and current foreign national employees.

Immigration tip No. 1: Timely and diligently complete the I-9 Form

The I-9, or more formally the Employee Eligibility Verification Form, is the gateway for securing employment in the U.S. The form’s first section, in which the employee attests that he or she is either a U.S. national or an alien authorized to work in the U.S., must be completed on or before the first day of employment. The employee must also provide original documents detailing (a) identity, and (b) employment eligibility, for the employer to inspect and confirm as part of Section Two of the I-9 Form; this must be done within three days of employment.

We’d like to impart two best-practice tips for completing the I-9. First, you must not allow an employee to begin working until the form is completed, even if that means delaying his or her start date. If the information cannot be verified, the worker is ineligible—which presents an issue if they’re already earning a paycheck.

Second, do not accept document copies, only originals and only those of a type listed on the acceptable documents checklist, which can be found here.

Immigration tip No. 2:  Avoid discrimination during the I-9 Verification Process

Anti-discrimination employment laws aim to avoid the imposition of more demanding requirements on noncitizen applicants. Avoid “document abuse” discrimination by being mindful not to request more documentation than necessary, or request particular documents from applicants of a particular area of origin. The goal here is to be uniform and fair in the application process.

Immigration tip No. 3: Confirm maintenance of eligibility for foreign nationals already in the U.S.

Employers should always confirm foreign nationals’ employment status before offering a position, even if he or she already lives in-country. Although a candidate living in the U.S. might seem to have an easier path to employment, status issues from prior work can cause delay or prohibit hiring. The most common status issue occurs when a nonimmigrant employee has recently been terminated by a prior employer; this might make the candidate ineligible for a change of employer even though his or her period of authorized stay has not expired.

Immigration tip No. 4: Report suspicions of fraud for declined applicants

You should always report incidents of suspicious activity relating to a foreign national’s employment application. Doing so will establish a record of cause for declining the applicant, helping you avoid civil penalties for discrimination. “Suspicious activity” in this context can include submission of a false document or a genuine document that does not belong to the applicant. Such activity can be reported by following the procedures outlined here.

Immigration tip No. 5: Keep records of documentation for the required retention periods

The I-9 Form and all accompanying documents must be retained for three years after hiring a foreign national worker, or one year after termination if the employee is terminated before the end of that three-year period. If you’re faced with a penalty regarding worker eligibility, these retained documents give you the best chance for a statutory defense.

Immigration tip No. 6: track and monitor Visa expiration dates

Expanding upon tip No. 5, it’s not enough to simply maintain verification documents. Employer best practices advocate for docketing deadlines to reverify employment eligibility of workers with time-limited work authorization. It’s also a good idea to request updated documents from an employee at least three months before expiry. This will give you plenty of time to complete the reverification process and plan for contingencies if an employee cannot provide you with satisfactory documentation. 

Immigration tip No. 7: Ensure employees traveling abroad have the proper documentation to return

Understandably, foreign national employees will travel abroad with some frequency. The INS (Immigration and Naturalization Service) has limited the discretion of inspection agents at ports of entry to admit traveling foreign nationals back into the U.S. when they lack the required entry documents. To avoid the disruption of a stranded employee, you should stay up to date on what travel documents are required to ensure safe return to the U.S. When an employee notifies you of his or her intent to travel abroad, provide a checklist of those documents.

Immigration tip No. 8: Pay attention to employees’ change of address

Under federal immigration law, relocating foreign national employees must notify the INS within ten days of a change of residence by submitting Form AR-11.  When you become aware of a relocating employee, notify him or her of the obligation to inform the INS.

Immigration tip No. 9: Review work eligibility for changes in employment

An employee’s nonimmigrant visa petition will outline the terms and scope of work permission. Employers should be aware that any change in employment—promotion, demotion, job transfer, or entity restructuring, for example—can take a worker outside of that scope and defeat eligibility. You shouldn’t hesitate to seek the counsel of an immigration attorney to approve a prospective change in employment.

Immigration tip No. 10: Establish company employment eligibility compliance policies

Structured compliance policies should be set up to ensure adherence to the best practices discussed above. This policy should include detailed procedures, communication channels, recordkeeping systems, and training. As a baseline, be sure to address the following questions when drafting your in-house policies:

  • What safeguards are in place to ensure that I-9s are completed by the employer and prospective employee before the deadlines?
  • What measures are in place to ensure that document abuse and discrimination do not occur?
  • What components make up the file management and deadline docketing system?
  • How will the company implement a training system to educate company representatives on compliance?
  • Are the application, file system, and reverification processes handled by trained and qualified company reps?
  • Who are the company’s trusted immigration professionals for nonimmigrant work visa employee questions?

This article is meant to be utilized as a general guideline for hiring foreign nationals. There are many nuances to employment law that cannot be covered in such a short space. If you have questions or concerns, you should contact a legal professional. Alex Gertsburg of The Gertsburg Law Firm can be reached at 440-571-7775 or ag@gertsburglaw.com. Mark Turner can be reached at 440-571-7773 or mt@gertsburglaw.com.      

Get more legal tips for your business on The Gertsburg Law Firm blog, with new articles posted every week.

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  • Next up: 11 Things to Know About ‘Building’ the Workforce of the Future
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  • 11 Things to Know About ‘Building’ the Workforce of the Future

    I recently had the opportunity to attend a conference where the topic was how contractors and construction companies are going to handle workforce needs in the future.

    We all know there is a shortage of great people in the contracting industry and the statistics show a decreasing number of millennials being interested in going into this sector. The question is, what can we do to arrest this trend and how can we win more than our fair share of the best people? 

    After listening to industry experts at the conference, I distilled the commentary down to my top highlights from the day:

    Top highlight No. 1: The top challenge facing this industry is getting the word out about the evolution of it—it’s not as stodgy as millennials and others think it is.

    Top highlight No. 2: One of the attendees sitting close to me at the conference, Tonya, shared that her background is psychology and she works at a construction company. According to Tonya, there’s a need to get the word out that construction is not just about swinging hammers. There are many opportunities that have nothing to do with the field. And, field personnel can’t expect to just swing a hammer anymore—it’s not enough! They need to be ready to embrace technology (i.e., productivity apps for timecards, BIM, 3D scanning, drones, etc.)

    Top highlight No. 3: Today’s workforce doesn’t always come to the construction industry with skills and the world is evolving faster; lifelong learning is the most important skill. 

    Top highlight No. 4: Training and education for employees isn’t an expense, it’s an investment.

    Top highlight No. 5: Times are not tough right now in our space. The times are 90 miles an hour right now so there is no excuse not to invest in our talent.

    Top highlight No. 6: Companies with 30% of executives who are women have a 15% increase in profits, according a recent study.

    Top highlight No. 7: If you’re not diverse, you’re losing money!

    Top highlight No. 8: Diverse teams (age, race, gender diversity) are 35% more productive, according to a recent study.

    Top highlight No. 9: If you’re not diverse, you’re losing money!

    Top highlight No. 10: Every company in construction is a tech company going forward, period

    The importance of professional development

    Every time I attend one of these events, it reminds me how important it is to spend a day each quarter getting out of my routine and attending a conference to learn and grow. This sector is heading for massive and disruptive change in the next three to 10 years. Technology is going to displace many workers and completely change how we build things. The conversations at these events aren’t optional anymore. Going to conferences isn’t a nice thing to do if you have time (which nobody does) but a necessary part of being the president, CEO or owner of a contracting business. If you don’t go now and start thinking about how you’re going to manage change in your construction business, I believe you’re going to have a LOT of time to think about it during the next three to 10 years when you’re left behind and no longer getting your fair share of profitable projects.

    Call me Chicken Little, but even if I’m wrong you’ll still learn a lot, grow your business (top and bottom line) and meet great contacts by attending more industry events. So, get out there and start attending some of your industry events, conferences and more!

    Jonathan Slain works with businesses that want to grow (exponentially) thru implementing the Entrepreneurial Operating System “Traction.” You can contact him by filling out an application or emailing him at jonathan@autobahnconsultants.com. Be careful…  Your business just might grow and make a lot of money if you contact him!

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  • Next up: 11 Things to Know and Expect from Generation Z
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  • 11 Things to Know and Expect from Generation Z

    They’re social, educated, digital natives—and they are just entering the workforce. Here are 11 things to know about the next generation you’ll be sharing office space with.

    Have you heard of them yet? The newbies on the block. The newest generation to enter the workforce. Generation Z.

    Generation Z is identified as individuals born after 1995, making them 23 years old or younger today. They are just entering the workforce and are vastly different than generations that have come before them. They are described as being optimistic with high expectations. They grew up in a generation where the Internet, laptops and everything else has been at their fingertips. New things that have come out with this generation include apps, social games and tablets.

    So, who are they are what might define them? I think it is important to note that like any prior generation, not every member of this generation will fit into the stereotype that is being created for it. However, I’ll share some of what the data is showing from places such as Forbes and the Huffington Post.

    Data point No. 1: They are a social generation. They spend a lot of time socializing with friends and family each day.

    Data point No. 2: They are multi-taskers. They thrive off utilizing multiple screens and devices to accomplish their work.

    Data point No. 3: They have an entrepreneurial spirit. Nearly 75% of them want to start their own businesses one day.

    Data point No. 4: They are educated. They want to constantly learn and 50% will have a college education.

    Data point No. 5: They want to do good. They are philanthropists at heart.

    Data point No. 6: They are the first true natives to the digital era. Thus, they spend more than 15 hours a week on their smartphones.

    Data point No. 7: They want to interact with people. They enjoy face-to-face conversations despite being so digital.

    Data point No. 8: They are tech-savvy. They depend less on books and information from advisors and instead use the internet to answer any questions that might arise.

    Data point No. 9: They lack focus. Their attention span is 8 seconds long requiring constant stimulation.

    Data point No. 10: They are cautious. They spend less and save more as a result of growing up during the Great Recession.

    Data point No. 11: They have been connected since birth. Some 40% state that they are fully addicted to their smart devices.

    Ashley Basile Oeken is president of Engage! Cleveland, a nonprofit whose mission is to attract, engage and retain young, diverse talent to the Greater Cleveland area. Learn more about her organization’s work by clicking here.

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  • Next up: 11 Things to Know About Gen Z
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  • Next up: 12 at 12 on Workforce
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  • 12 at 12 on Workforce

    Last Friday, I had the opportunity to have lunch with 12 COSE small business owners to talk about workforce issues and their businesses.

    Last Friday, I had the opportunity to have lunch with 12 COSE small business owners to talk about workforce issues and their businesses. Lunch was at the new Adega Restaurant at the Metropolitan At The 9 Hotel. Pretty neat new place and some great conversation and informal networking among those that attended. 12@12 is a good chance for a small group of small business owners to share ideas and talk about what they are thinking about in their business.

    In general, the whole process of finding workers continues to be difficult. In the polling we do of members about 20% indicate that it is hard to find the workers that you need for your business. While that sounds like it’s not much of a problem, when you consider that only 25% of you are in the mode of hiring at the current time it changes the picture quite a bit. That means that 4 out of 5 employers that are hiring are having a hard time finding who they need. That sounds crazy given how many folks are still out there unemployed or underemployed and with a lot of money being spent on government workforce support systems like www.ohiomeansjobs.com.

    The owners in the conversation indicated difficulty with finding the “right” employees. A lack of the right skills was a big one. No surprise here, but finding people with current skills continues to be difficult.  Beyond skills though, most indicated a real willingness to train people with the right attitude and with the ability to show up on time, drug free and ready to work. Most of the attendees were boomers or X’rs with a real desire to give people a chance to work—but there has to be a commitment by the employee to want to be there and be accountable for the work they do.

    The process of identifying job candidates has also gotten trickier. Newspaper classifieds don’t do the job they once did and there are all kinds of different job sites, job boards and social media tools out there making it hard to know just where to go. The owners at lunch mentioned some good luck with www.indeed.com, FaceBook, and www.craigslist.org.

    Work ethic was another topic of conversation. And as we talked through that issue, it seemed that the best approach was being clear with expectations and holding employees accountable. Then following up to ensure that those that don’t fit, don’t stay was some good advice. One of our attendees recommended the book “Traction” (www.tractionbook.com) as a good read for establishing structure and accountability in your business that helps to set expectations and grow customers.

    Internships haven’t been heavily pursued. We explored internships as an opportunity to both build a pipeline of employees and as a way to imbue some real world education in students to help better prepare them to be quality employees. For most, internships feel like a difficult way to get help. From structuring and managing the role to finding the right students and then getting real value from them, there seemed to be a lot of perceptions that discouraged interns as an option. Folks were encouraged to check out resources like NEOIntern and the Northeast Ohio Talent Exchange at www.NOCHE.org or highly managed intern programs like at Youth Opportunities Unlimited at www.youthopportunities.org.

    Overall, good conversation on what seems to continue to be a tough topic for small business owners. If you’ve got ideas on workforce, have found good solutions or want to share your own story, I’d love to hear from you at smillard@cose.org.
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  • Next up: 12 Essential Elements of Engaging Your Employees
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  • 12 Essential Elements of Engaging Your Employees

    Around the world, only 13% of employees are engaged in their jobs. Disengagement is more than just a percentage in a Gallup report, though. A disengaged workplace is the emotional effect of poor management. It’s an outcome that employees can feel on a daily basis, one that has a major impact on a company’s performance — no matter its size.

    Around the world, only 13% of employees are engaged in their jobs. Disengagement is more than just a percentage in a Gallup report, though. A disengaged workplace is the emotional effect of poor management. It’s an outcome that employees can feel on a daily basis, one that has a major impact on a company’s performance — no matter its size.

    Disengagement carries a hefty price tag. In the U.S. alone, active disengagement costs organizations half a trillion dollars each year. For the largest of companies, disengagement is a proven drain on efforts to reach profit goals and reap improved earnings per share.

    For small and medium-sized businesses? Disengagement can be fatal.

    But it shouldn’t cost a lot to engage your employees. For years, Gallup research has proven that an engaging workplace starts simply enough: with managers asking their employees the 12 questions that gauge their emotional connection to where they work. There’s a hierarchy of considerations, a sequence through which to address the 12 elements that Gallup knows directly impact engagement. 

    Don’t overlook an employee’s basic needs
    Do your employees know what is expected of them at work? Do they have the materials and equipment they need to meet — and exceed — those expectations? It seems easy enough, but plenty of companies struggle to ensure that their people have what they need to do their work to the best of their ability.

    Don’t treat every employee the same
    Do your employees get to do what they do best every day? Have they received recognition for their efforts in the past week? Do they feel that someone at work cares about them as an individual? Do they have someone at work who encourages their development?

    These questions are specifically worded for a reason. Engagement resonates on a personal level, at the core of an employee’s feelings. To be engaged, they must feel connected to their work at as individual a level as possible.

    Don’t take teamwork for granted
    Do your employees think their opinions count at work? Do they think that the mission or purpose of their company makes them feel their jobs are important? Do they think their fellow employees are committed to quality? Do they best friends at work?

    Imagine just how more productive and efficient your teams could be if your people could strongly, genuinely agree with each of these statements. You can achieve a lot with an empowered, mission-driven workplace attuned to quality and cooperation.

    Don’t forget to address the future 
    Do your employees have the chance to talk about their progress? Do they have an opportunity at work to learn and grow?

    No matter what they do day in and day out, it is vitally important for managers to talk to their employees about how well they’re doing their job. That also means making plans for acquiring new skills or experiences related to their role.

    Listen, learn, and lead to engage your employees 
    Gallup research has proven that measuring employee engagement using these 12 elements predicts performance on the metrics that matter most to companies of all sizes—turnover, productivity, and profitability, among others. We also know that these are the elements of engagement that managers can most directly impact on a daily basis, too. That’s important, because it is up to managers to listen to their employees, learn how to engage them in their work, and then lead their teams every day with those needs in mind.

    There are plenty of strategies and techniques managers can use to engage their employees. But all efforts always come back to asking those 12 questions and addressing the 12 elements of engagement in everything your managers do.

    About Charlie

    Charlie Colón is Gallup’s Global Channel Manager for employee engagement. He helps companies implement Gallup’s employee engagement solution for small- to medium-sized organizations to increase their productivity, customer engagement, quality, retention, safety, and profit. He has worked with clients in the financial services, hospitality, healthcare, and retail sectors.

    Prior to assuming his current role, Charlie served as Executive Director of Gallup Technology. He managed a team of technical project engineers who develop software used by clients and associates and served as the product manager for Gallup’s online reporting portal, which is used by more than 800 clients. Charlie also led Gallup’s information technology efforts worldwide. He managed a staff of technologists that served operations in the United States, China, India, Australia, Singapore, Bangkok and Tokyo.

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