What Immigration-Related Questions Can Employers Ask During the Hiring Process?

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Hiring, Human Resources, I-9, Immigration Compliance, Sponsorship, Work Authorization

Employers often ask me: “What pre-employment questions are permissible to ask to help me determine whether a prospective candidate requires immigration sponsorship?”

Employers are prohibited from denying protected individuals employment because of their real or perceived immigration or citizenship status.

Until recently, the following two questions were the only accepted questions for pre-hire screening:

1. Are you authorized to work in the U.S.?; and
2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?

What Kind of Changes to Expect in Immigration Compliance

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E-Verify, I-9, ICE, Immigration Compliance

Immigration compliance is a top priority for the new administration, and many changes may be coming soon.

One projection is that E-Verify will become mandatory for all employers. Currently, participation is voluntary except for federal contractors or if your state has a mandate.

Only time will tell if mandatory E-Verify becomes a reality nationally for all businesses, but two recent enforcement actions may provide us with an idea about the types of changes to immigration compliance we should expect:

Business Immigration and I-9/ E-Verify Changes under the Trump Administration at the SHRM Jacksonville Annual Conference

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E-Verify, H-1B, I-9, Trump, Visa Options

Giselle presented at the SHRM Jax Annual Conference about “Managing your Foreign Talent in 2017 and Beyond under the Trump Administration”.  The message of her presentation was: Prepare for the challenges ahead, but also seize the opportunities that come with changes. 

Employer Alert: Trump’s Budget and E-Verify

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E-Verify, I-9, Immigration Reform, Trump

The President’s budget allocates $15 million to “begin implementation of mandatory nationwide use of the E-Verify Program.”

E–Verify is a government web-based system that compares information from the Form I-9 to data from US government databases to confirm the applicant’s work eligibility. Currently, participation is primarily voluntary.

The President will need Congress approval to mandate E–Verify nationwide. Senator Charles Grassley has re-introduced legislation to authorize a national E–Verify program. 

I-9 Alert: Automatic Extensions of EADs

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EAD, High-Skilled Workers, I-765, I-9, USCIS, Work Authorization

Due to the new High-Skilled Workers rule that went into effect on January 17, 2017, USCIS is no longer required to adjudicate EADs within ninety days. To help prevent a gap in employment authorization, DHS will grant automatic 180-day EAD extensions in most categories if filed on the same basis as the initial EAD.

Here is what you need to know about these new regulation. 

Employer Alert: New I-9 Handbook

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E-Verify, EAD, Handbook, I-9, USCIS

It’s here! US Citizenship and Immigration Services (USCIS) has released the new M-274 “Handbook for Employers with Guidance for Completing Form I-9”.

The handbook includes guidance on completing the new Form I-9, which went into effect on January 22, 2017, as well as photocopying and retention, unlawful discrimination and penalties, and E-Verify.

What is the Latest on Pre-Population of I-9 Forms?

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DHS, Due Diligence, E-Verify, I-9, Immigration Compliance, OSC, USCIS

USCIS, OSC and DHS on its E-Verify Connection have issued guidance stating that section 1 cannot be pre-populated during the on-boarding process of a new hire.  This is true even if the employee reviews the entries and signs the section in affirmation of the entries.

OSC issued similar guidance in a Technical Assistance Letter (TAL).

However, an employer can pre-populate certain fields in Section 2 such as: employer’s business or organization name, employer’s business or organization address (street number and name), city or town, state, and zip code.

How to Correct Mistakes on the I-9

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Audit, I-9, Immigration Compliance

If an employer conducts an internal audit, sometimes mistakes are uncovered. What are the next steps you should take? Here is what you need to know:

If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible. 

Trump Administration Executive Orders on Immigration and Workforce Strategy

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E-Verify, Executive Order, H-1B, I-9, Immigration Compliance, Immigration Reform, Travel, Trump

As of this writing, the Trump Administration has issued and is expected to continue to issue Executive Orders (EO) relating to immigration including visa issuance, screening procedures, E-Verify, higher H-1B wages and refugees.

The intent of these EO is to protect our nation but they are also having the effect of creating confusion, anxiety and delays for foreign nationals and their employers.

Arizona Company Fined $347,500 for 380 Paperwork I-9 Violations

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I-9, ICE, Immigration Compliance, Notice of Inspection, OCAHO

In USA v. Frimmel Management, OCAHO ordered the employer to pay $347,500 in penalties for 380 paperwork I-9 violations.

ICE served this employer with a Notice of Inspection requesting the original Forms I-9 “for all current employees and all former” employees, copies of any identity and employment authorization documents attached to the employees’ Forms I-9, a list of all employees receiving wages, and other related employee and business records.