October 1st marks the beginning of the “onboarding” of new H-1B employees at many companies throughout the United States. Winning the lottery and having H-1B Petitions approved by United States Citizenship and Immigration Services (USCIS) were just two initial steps involved in the hiring and retaining process of talented foreign nationals in the United States. Carefully onboarding the H-1B employee is as crucial as selecting, hiring and bringing them into the United States (or assisting in changing their nonimmigrant status in the United States). This article briefly addresses few very basic but very important topics that HR Managers, HR Professionals and Business Owners should be aware of, and religiously comply with, in order to avoid potential pitfalls pertaining to the onboarding of new H-1B employees.
Diligently Complete Employment Eligibility Verification (Form I-9) Requirements.
Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. Form I-9 is made up of three sections.
Newly hired employees, including H-1B employees, must complete Section 1 of Form I-9 no later than the first day of employment. Each employee hired on or after November 7, 1986, must complete the designated portion of the I-9 Form. Form I-9 requires the employee to attest, under penalty of perjury, that he or she is authorized to work in the United States as a U.S. citizen, lawful permanent resident, or nonimmigrant with a time-limited form of work authorization. Within three (3) business days of hire, the employee must also submit certain original documents that establish identity and employment authorization to the employer for review. Employers cannot specify which document(s) employees may present from the Lists of Acceptable Documents, found on the last page of Form I-9, to establish identity and employment authorization.
Employers or their authorized representative must complete Section 2 of the I-9 Form by examining evidence of identity and employment authorization submitted by the employee within three (3) business days of the employee’s first day of employment. If the employee has provided a document expiration date in the employee’s section of the I-9 Form, the employer also must re-verify the employee’s employment eligibility before that date has passed. The employer must retain the completed I-9 Form for at least three (3) years or one (1) year after employment terminates, whichever is later. This is referred to as the “retention period.”
Employers who do not complete and retain I-9 Forms for every employee hired on or after November 7, 1986, may face civil fines by the U.S. Immigration and Customs Enforcement (ICE) for failing to properly prepare each I-9 Form. The severity of the penalty is be determined by: (i) the size of the business; (ii) the employer’s good faith efforts to comply with the law; (iii) the number of unauthorized employees; and (iv) whether the employer has a history of violations. In addition, ICE may impose civil sanctions for each unauthorized foreign national employee. Note that the Employers are liable for both “actual” and “constructive” knowledge that an employee is not authorized to work. There are other sanctions and penalties involved which are beyond the scope of this article.
Comply with LCA Requirements to Avoid DOL’s Investigation.
Since 1990, all employers submitting H-1B visa petitions must first have a Labor Condition Application (“LCA”) certified by the U.S. Department of Labor’s (DOL) Employment and Training Administration. The LCA requires employers to attest that: (i) the HI B nonimmigrant will be paid at least the local prevailing wage or the employer’s actual wage, whichever is higher, and paid for non-