Few issues are more intimidating for human resources managers than those involving compliance with immigration regulations.  A watershed change in immigration law occurred in 1996, with a passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).  Two years later, the Immigration and Naturalization Services (INS) of the U.S. Department of Justice has yet to enact most of the regulations required to implement IIRAIRA, and the act continues to stir controversy and uncertainty.

Employment-oriented immigration questions can arise from the transfer of foreign-born executives into and out of U.S. subsidiaries; the initial hiring of foreign-born engineers, scientists and other skilled professional or casual laborers; or INS audits of the I-9 verification process. Even small businesses can face immigration-related issues, albeit less frequently then larger companies.

I-9 verification often creates trouble for employers, who may be blissfully unaware of their legal responsibilities.  For example, employers have a legal obligation to ensure that every new employee completes one portion of the I-9 on the first day of employment; the employer must complete another portion of the same form within three days of hire.  Employers may accept only original documents in order to verify an employee’s identity and work authorization.  Employers may not demand to see a particular document but must allow the employee to select from a list of permissible documents.

Recordkeeping is another critical component of the employment eligibility verification process.  Employers must retain I-9 form for three years from the date of hire or one year from the date of termination, whichever is longer.  If incomplete, inaccurate or missing I-9s are detected in an employer’s file records, the employer should immediately consult counsel, since Federal regulations impose specific (yet confusing) requirements for bringing these records back into compliance.  Failure to do so exposes the employer to civil penalties, and in the case of willful noncompliance, criminal prosecution.

Medium and large employers may wish to have counsel help then develop and internal audit program for their I-9 procedures and recordkeeping, in order to ensure that their practices survive INS scrutiny.  INS investigations and compliance audits frequently target clothing manufacturer, ethnic restaurants, meat packing and food processing plants, agricultural enterprises and the hospitality industry. Employers in these sectors should exercise extra prudence.