When an ominous-looking letter from the Department of Homeland Security arrived, Ximena Hartsock felt nervous. The co-founder of Phone2Action, a civic-engagement startup based in Washington, D.C., had helped a few of her 65 employees obtain visas, but now the DHS was retroactively reviewing one worker's status.

The letter--known as a Request for Evidence--demanded additional documents within 90 days. "Don't worry, we're handling it," Hartsock, who emigrated from Chile in 1997, told her employee. "But to see this person's eyes--it's tough," she says. "It's very close to the anxiety and anguish you feel when someone is very sick."

For many businesses, 2017 was a year of immigration anxiety. If you employ immigrants, uncertainty is likely taking a toll on them and your business. You obviously don't want to lose talented employees, but you also can't afford to run afoul of the law. It is illegal to knowingly employ someone whose work authorization has expired, and companies that do could face civil fines or their executives might do time. With immigration policy in flux, it's important to know about managing--or helping--any affected employees. 

A Work Force Still Powered by Immigrants
27 million
Number of U.S. workers who are foreign-born--about 17 percent of the labor force.
Source: U.S. Bureau of Labor Statistics
5 percent
Portion of the work force--eight million employees--who are unauthorized immigrants.
Source: Pew Research Center
450,954
Number of people deported last year by DHS. About 22,550 of those fell under the category that includes "significant visa abuse."
Source: U.S. Department of Homeland Security
85K
Limit on H-1B visas in fiscal 2018, including 20,000 for workers with advanced degrees.
Source: U.S. Department of Homeland Security
$4,384
Maximum penalty for first-time offenders for each unauthorized worker they've hired.
Source: U.S. Department of Justice

The rules vary by visa type

There are many types of visas, and in some cases you will not know the specifics of workers' immigration statuses. So-called nonimmigrant visas grant temporary authorization and are not a conduit to permanent residency. These include the H-1B, common in the tech industry, which can be extended up to six years; the H-2A, for agricultural workers; and the H-2B, often used for hospitality and tourism workers. In these cases, you act as sponsor and need to stay on top of any required renewal proc­esses.

You can hire holders of other immigration statuses--such as Deferred Action for Childhood Arrivals or Temporary Protected Status--based on their job qualifications. But you can't ask certain questions about their particular work authorization. Indeed, bosses who single out certain employees with questions such as "Are you a DACA 'Dreamer'?" or "You have a strong accent--where are you from?" may find themselves triggering a discrimination complaint, says Greg Siskind, an immigration lawyer and founder of Memphis-based Siskind Susser. The questions can imply an intent to discriminate in the workplace.

Beware of expiring visas

Some workers present an Employment-Authorization Document when they fill out their I-9, a form that verifies a worker's identity and legal authorization to accept employment. The EAD is granted to a variety of foreigners, including refugees, Dreamers, some college students, and even some spouses of exchange students, and it includes an expiration date.

Careful: It is illegal to rescind a job offer because someone's work authorization may expire. Also illegal: selectively asking workers to resubmit an I-9 without a good reason or asking them to submit more documents than are required by the I-9 at hiring. That said, it is not illegal--indeed, it is recommended--to keep track of expiration dates and gently remind employees they need to present new proof of work eligibility by those dates. "It's OK to give them a heads-up that they're set to expire," says Daniel Brown, a D.C.-based immigration lawyer and former Homeland Security official. He recommends giving them 180 days' notice to renew.

Help with legal services

Refer workers to immigration attorneys, create a legal guidance hotline, or pay legal fees. Set up these services so workers can access them confidentially, says Siskind, though they're free to share information.

At Zendesk, some DACA recipients voluntarily told the firm of their status after President Trump's September announcement that he intended to wind down the program. "This uncertainty is hard for employees," says chief legal officer and senior vice president John Geschke. "We tell them we're committed to finding a solution. It's also crucial to have a vigorous antidiscrimination policy published for all employees, and to emphasize your commitment to that policy."

 

When Authorization Expires

Know the risks of turning a blind eye. Once renewals are no longer possible for some workers, including Dreamers, you'll face a hard choice: Fire them or risk breaking the law. The truth is, enforcement on employers is pretty rare. Given that the annual number of I-9 inspections averages just 2,095, odds are low that you'll be caught if you employ an unauthorized worker. But if you are caught, you can face civil penalties, or even jail time for a persistent pattern of violations.

Although President Trump has pledged to increase the number of U.S. Customs and Border Protection agents and Immigration and Customs Enforcement agents, there is no indication that his administration will bring back the disruptive work-site raids that were more common under President George W. Bush.

"It's rare to have employers be caught no matter what," says David Bier, an immigration policy analyst at the Cato Institute. "But if there was a situation in which employers decided to knowingly continue to hire someone illegally--for example, as an act of civil disobedience--then they could be prosecuted for a felony for harboring illegal workers."

Pay out accrued sick and vacation days. Workers who lose their authorization are ineligible for unemployment benefits and could face a sudden loss of income. That said, in many states, these employees are still entitled to any accrued money owed for vacation and sick leave. You should pay out these balances as quickly as possible.

"Just because you're terminating someone because they're not work authorized anymore doesn't mean you get out of your obligations as an employer," says Siskind Susser's Greg Siskind. Likewise, workers are entitled to keep any vested portions of an employer-sponsored retirement account when their work authorization ends. There's no law against offering severance payments consistent with your employment policies to help cushion the blow as well.

Keep the door open. With the labor supply tightening, you might want to offer an unpaid leave of absence and hold a worker's job while he or she seeks other forms of work authorization. If not, writing a strong recommendation letter can help your departing employee seek work elsewhere.

Alternatively, companies that already have foreign offices can relocate employees. Zendesk, with locations in Europe and Asia, will consider relocating immigrant employees who are unable to renew their work permits, says SVP John Geschke. And even smaller companies can now consider setting up a telecommute for a valuable employee.

From the Winter 2017/2018 issue of Inc. Magazine