Business Counselor December 31, 2012 Nathaniel R. Wolf

Top Five Immigration Mistakes Employers Made in 2012

5. Failing to properly pay H-1B workers.

U.S. Department of Labor regulations require employers pay employees on H-1B work authorizations at least the prevailing wage. Similarly, the U.S. DOL prohibits employers from demanding employees pay H-1B government filing fees. In 2012, the DOL debarred a Washington information technology company from participating in the H-1B program for two years, assessed $405,000 in civil money penalties, and ordered payment of almost $1 million in back wages for pay related violations.

4. Failing to properly notify USCIS of an H-1B worker’s termination.

A company that terminates an H-1B employee is obligated to promptly withdraw the H-1B from USCIS and pay for the reasonable cost of the worker’s return transportation to his or her home country. Penalties for violating this rule include back pay for the entire period of the H-1B approval.

3. Citizen status discrimination.

The anti-discrimination provision of the Immigration and Nationality Act (“INA”) prohibits discrimination based on citizenship status. Companies that discrimination based on citizenship status are subject to civil penalties and monetary fines.

2. I-9 Document Abuse.

Employers are prohibited from requiring that non-citizen employees provide more or different documents or information than required for U.S. citizen employees during the initial employment eligibility verification process. Employees that do so are subject to civil penalties and monetary fines for violation of this rule.

1. Failing to prepare for an immigration audit.

Government immigration officers have been increasingly active in the last several years in auditing and investigating employers for immigration fraud. Employers who do not periodically audit their books, their I-9s, and their employment verification files run the risk of significant penalties in the event of an immigration investigation. In 2011, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record breaking 221 owners, employers, managers and/or supervisors (up from 196 in fiscal year 2010). When the final numbers are out, 2012 is expected to be another record breaking year for immigration enforcement. This trend is likely to continue in 2013.

In order to avoid the above-listed costly errors, your company’s resolution for 2013 should include insuring immigration compliance programs are in place, up to date and followed. If you would like to consult with an experienced immigration attorney, please feel free to contact me at or 616-632-8000.

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