7 Tips on How to Avoid Employment and Immigration Crossover Issues.

1. Don’t include the I-9 with the job application. You can only request that the I-9 be filled out once the applicant has accepted a job offer.

2. Make sure you have a completed I-9 on file for every employee at your company including the owner and family members (does not apply to anyone who has now been employed for longer than three years).

3. Keep the I-9’s in binders rather than the employee’s HR file. Have one set of binders for active employees and one set for terminated employees.

4. Employers have begun to see more instances where an employee has recently legalized their status and presented a work permit and new social security number. When the employee was originally hired they presented what were presumed to be valid work authorization documents. Now the employee comes forward and informs you that his/her real name is different, and offers a new SSN and work permit. In such a case, fill out a new I-9, attach a memo explaining the situation and a copy of the new work permit and social security card, and staple all of this to a copy of the old I-9. Usually, the employer must terminate the old name in their HR information system and process the new one as a new hire. In such a case, the original old I-9 can go into the termination binder along with a copy of the memo as well.

5. Anytime you are presented with a discrepancy in the employee’s SSN (i.e. a mismatch letter from any government agency), call the employee in to verify there isn’t a simple typographical error on the original hire paperwork. If not, send them to the Social Security Administration and ask them to bring back verification of their SSN. If no verification is forthcoming within 30 to 60 days, contact legal counsel before making any further decision.

6. If an undocumented employee files a labor/employment claim against you, and you subsequently discover that the employee is undocumented, the employee can be terminated since they are not work authorized and they have falsified their original documents. However, the employer will be liable for the employment claim that led to the discovery of the undocumented status. NOTE: Do not threaten to report an undocumented worker in exchange for dropping the claim. It is now “criminal extortion” in California. Out of state clients should avoid this practice as well.

7. When making a job offer to an H-1B or similar non-immigrant visa holder, indicate on the job offer letter that the job is still terminable at will despite the fact that you are petitioning for them for x number of years on the visa petition. Also indicate that you are under no obligation to sponsor the employee for permanent residency, but even if you decide to do so in the future, it won’t alter the terminable at will relationship.