Wednesday, February 22, 2012

Immigration Program Tune Up Checklist for Employers

by Charles M. Miller

Now that the Super Bowl is over and March Madness is a few weeks off, it may be the best time for your company to check your immigration benefit and compliance programs to make sure you are using the current best practices and tune them up if they are not efficient.

Does your company have an immigration compliance policy? A written immigration compliance policy manual serves several purposes: (1) It sets forth the line of supervision and responsibility for compliance decision making; (2) it provides the compliance staff with clear indications of which decisions require a manager and which do not; and (3) it provides directors, officers, managers, supervisors and responsible compliance employees with a frame of reference as to the requirements of the law, taking into consideration the employer's compliance history.

Do you have an ongoing compliance training program? If so, does it include anti-discrimination, Form I-9 verification and contractor and subcontractor issues? Does the employer have legal counsel to call on when there is the need for more information on a particular compliance issue?

Does the company require managerial employees to receive compliance training? Are there library and
reference files dedicated to Form I-9 verification and other compliance issues? Training on worksite compliance issues pays dividends over time. It helps the company develop an institutional attitude of compliance which continues to provide staff with confidence that they are performing their compliance tasks correctly.

One effective training method is a compliance training teleconference with legal counsel every six months. This regular training is particularly helpful for companies with remote worksites that are performing Form I-9 verifications, such as retail stores. An effective compliance training program is good evidence that the company treats its compliance responsibilities seriously and in good faith. Government agencies and courts are impressed with a company that continually seeks to improve its compliance efforts with a current training program. All anti-discrimination notices to employees about their rights should be prominently posted. All personnel involved with immigration-related hiring, including managers and supervisors, should be educated about the requirements for compliance with the anti-discrimination laws including document abuse, national origin, citizenship and immigration status violations, retaliation, and other unfair immigration-related employment practices.

Does the company maintain a tickler system to keep track of the expiration dates of employee Form I-9 forms to warn employees and allow sufficient time for reverification?
The tickler system should highlight the expiration date by which the employer must actually undertake reverification of the alien's work authorization, as well as provide a warning date to remind the employee to obtain an extension of an employment authorization document, if necessary, allowing sufficient time for CIS processing, taking into consideration the deadline date for reverification. It is important that the tickler system be redundant. Computer calendaring or database software with monthly reports and call-ups should be used. Make sure that any computer-based system is backed up frequently and have more than one employee responsible for data entry, reviewing reports, and relating employee files to the dates. Put imminent items, due within the month, on a computer calendaring system or paper calendar.

Don’t forget to apply for your H-1B petitions in time- For F-1 students who are admitted for duration of status (D/S as marked on Form I-20 and Form I-94), a change of status application or petition to another nonimmigrant category (e.g. H-1B) must be properly filed within the 60 day grace period following OPT. An H-1B visa petition/change of status application should be filed early enough in the fiscal year while there still H-1B numbers available, and prior to the expiration of the Employment Authorization Document period. CIS processing time should also be factored in to prevent a gap in employment authorization

Protect H-1B employees with timely PERM applications-There are renewal options for H-1B Status for the employee who has a pending I-140 immigrant visa petition or adjustment of status application. He or she will be permitted to apply for an extension of his or her H-1B status beyond the 6 years if more than 365 days have elapsed since his or her labor certification application or immigrant visa petition was filed. An unlimited number of annual extensions will continue to be granted until the application for permanent residence is decided.