Sometimes a company finds it necessary to hire foreign workers to fill niche needs, particularly when specialized skills or industry-specific experience aren’t readily available in the domestic labor market. These situations require tapping into the global talent pool to remain competitive and meet project demands.
When an employee’s work authorization is approaching its expiration date, employers need to ensure they comply with federal immigration law while avoiding unlawful discrimination. Failure to meet either responsibility can expose an organization to liability.
Consistent and neutral tracking is key
All new hires need to complete a Form I-9 to verify their identity and work authorization. For employees with temporary employment authorization, the employer must reverify their eligibility before the current document expires.
During the process, employers can’t:
- Request specific documents
- Treat employees differently based on citizenship or immigration status
- Take action before reverification is required
Creating a structured tracking system is essential. A “tickler system” alerts HR of an upcoming authorization expiration date, based solely on the dates listed on the employee’s original I-9 documents. Having a uniform system protects employers from claims that they singled out workers because of their nationality or other protected characteristics.
The reverification discussion should begin 90 days before the expiration, which provides the employee enough time to file for extensions. Inform them that their current authorization is expiring and ask them to provide you with any valid documentation from the I-9 Lists of Acceptable Documents.
It’s also crucial for employers to understand automatic extensions. Many workers who file a renewal application on time are permitted to keep working even after the physical card expires. Specific categories of Employment Authorization Documents qualify for automatic extensions up to 540 days if the employee filed for renewal on time. Employers need to know when these extensions apply to avoid unlawful terminations.
If the employee doesn’t have an automatic extension and doesn’t provide proof of continued work authorization, the employer must remove them from the workplace until they present valid documentation.
Immigration law changes frequently and rapidly. Organizations should work with a legal immigration professional to avoid costly mistakes.