Appropriate Documentation for Foreign Employees: Comply With ICE to Stay Out of Hot Water

Appropriate Documentation for Foreign Employees: Comply With ICE

This article was updated on July 13, 2018.

The U.S. workforce is a rich mix of talent that includes citizens of foreign nations. It's a formula that can serve to expose U.S. workers to cultures and business practices from elsewhere in the world — potentially preparing employees for new supervisory roles or foreign assignments. Accompanying that diversity is a need to comply with U.S. Department of Labor rules and appropriate documentation for foreign employees.

Foreign workers are only permitted once approved through a certification process. Labor certifications can be granted for non-immigrant workers under visa programs for specialty occupations, nursing, temporary or seasonal agricultural work and more.

This is a routine affair for many organizations, and hiring foreign workers is done for many reasons. One of the most significant driving forces is the rise of global commerce: Organizations might choose to bring employees or suppliers to work in the U.S. for training, product development, learning foreign markets and more. Organizations based overseas may also send their own citizens to train U.S. workers, collaborate on projects or work in retail or manufacturing facilities.

Comply With ICE to Stay Out of Hot Water

Legal authorization to work in the U.S. is enforced by the Immigration Customs and Enforcement (ICE) agency. Employers are not expected to scrutinize the standard documents or paperwork and make a judgment as to their legitimacy. In fact, that could quickly cross into a discriminatory red zone. Instead, employers are expected to make a prima facie judgment as to the validity of the documents supplied by an employee.

The penalty for hiring an undocumented worker is currently between $110 and $1,600 per worker for occasional lapses. The organization could also be exposed to perjury charges. Employers seen by ICE as repeat offenders face up to $3,000 per employee and/or up to six months in prison.

There are other risks. In the National Law Review, Nataliya Dominguez, of Greenberg Taurig LLP, warned that organizations risk "large health care payouts and contract litigation" if there are insurance claims that stop-loss insurers refuse to honor due to an employee's undocumented status. In a case study explored by Dominguez, that worst-case scenario did not play out; the U.S. District of California court ruled that due to applicable federal and California law, the insurer could not deny benefits based solely on the employee's undocumented status. But that may not accurately reflect how the tide would have turned in other states — the decision hinged on a specific California state law affording undocumented workers certain workplace protections. Many states do not have comparable legislation.

Employers concerned about being at high risk of accidental non-compliance, perhaps due to high turnover or other factors, might consider the ICE's Mutual Agreement between Government and Employers (IMAGE) program as an added protection. ICE IMAGE was designed to facilitate government-employer collaboration in hiring practices. It's optional, and it's not for everyone. Attorney Bruce Buchanan, of Siskind Suvver PC, wrote in HR Professionals Magazine that a big drawback of the program is granting ICE full access to your facility for an I-9 audit. "The decision to enroll in IMAGE is a difficult one," he said.

Discriminatory Red Zones

As previously mentioned, employers are prohibited by federal law from discriminating against any employees in the hiring process, even if they believe they are doing so in order to comply with immigration laws — for example, by profiling someone based on their surname or ethnicity and subjecting their eligibility to further scrutiny. As ICE explains on its website, the Immigration and Nationality Act "prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual's national origin or citizenship status. The statute also prohibits discrimination during the employment eligibility verification (Form I-9 and E-Verify) process (document abuse), and retaliation or intimidation."

Further, larger businesses should note that additional legislation known as the Illegal Immigration Reform and Immigrant Responsibility Act applies specifically to employers with four or more employees.

Independent Contractors Must Comply, Too

True, employers can try to avoid the entire documentation problem by using independent contractors instead of employees. But if employers have reason to believe that such contract labor is undocumented, they are still liable. In 2005, a large employer was sued because one of its cleaning contractors used undocumented employees. The employer lost the case and paid $11 million in a settlement.

Cases like that demonstrate the importance of keeping up-to-date with appropriate documentation for foreign employees, and staying abreast of new legislation and developments. Foreign workers are here to stay, and there are many reasons why an organization would choose to hire them. With proper compliance, it's a win-win.