Law Office of Bonnie Stern Wasser
—Bringing People Together—
Especially for Human Resource Executives
Hiring the best and brightest employees wherever you find them worldwide
Have you found a superior worker with the credentials you need, but the applicant is foreign born? Are you afraid of the legal hurdles needed to hire that worker before your competitor does? Think twice before caving in to your fears of bureaucracy and expense. Yes, it's true - while both political parties promote the need to reduce employers' regulatory burdens, Congress keeps imposing new regulations on employers wanting to legally hire foreign workers. BUT, so far, Congress has not done away with most means of hiring talented, educated foreign workers because many in Congress know that for America to remain economically competitive in a global marketplace, US employers must be able to have access to the best and the brightest talent wherever these people can be found in the world. Typically, we find that U.S. employers do not invest the time and money to legally hire foreign workers unless they have trouble finding the talent they need to be competitive or to develop new products and technologies.
Conducting an internal audit
Whether you hire foreign workers or not, your company is still obligated to document the work permission status of every employee hired after November 6, 1986 on Form I-9. In addition, you may not demand specific documents from new employees or you could face claims of discrimination. Consequently, every company has the potential for being the subject of an audit or discrimination claim. Moreover, if you hire H visa workers or use the PERM labor certification program, your company can also be audited by the US Department of Labor. Therefore, consider conducting an internal labor audit, in which immigration compliance is reviewed BEFORE the government comes knocking on your door. If you regularly hire foreign workers or are in an industry frequently targeted for DHS/ICE raids or DOL audits (e.g., garment manufacturing, restaurants, hospitality or light assembly), consider having an immigration law expert train your staff on how to prepare and maintain proper documentation and prepare for a workplace visit by various immigration-related government agencies.
Immigration and mergers & acquisitions planning
Although not often discussed by corporate attorneys, if your company is considering buying or merging with another company or could be bought out, immigration law does become an important issue during the due diligence process. This is because you could be assuming the employer sanctions liabilities of the company to be purchased, or your current valuable employees who are needed by the takeover company could lose their valid status in the process. Employees on valid work visas may lose status due to corporate ownership changes, since some visas have very specific business entity structure requirements. Or the acquiring company could be assuming liability for I-9 violations or may have to lay off unauthorized workers on staff. Therefore, it is advisable to include immigration counsel in your due diligence and negotiations activities BEFORE problems arise.
Updated 10/2011
