Woods Rogers’ Anthony Monioudis Talks to WIQO Radio About I-9, H-2 A&B, and E-Verify Compliance

The following are excerpts from Anthony Monioudis’ interview on March 9 with Brian Weigand and Mari White on WIQO’s Morning Show, heard throughout Southwest and Central Virginia. Read highlights of Anthony’s interview below and visit our Immigration page for information on how we can assist you with I-9, H-2 A&B, or E-Verify compliance.

Anthony: Good morning Brian and Mari!

Q. Brian: Let’s start out here and talk about some of the topics that businesses are going to need to know. First, what are a company’s responsibilities when hiring immigrants, and especially when hiring seasonal workers?

A. Anthony: Since 1987, every company hiring a new employee is required to fill out paperwork called an I-9—a form where an individual has to prove their identity and their ability to legally work in the U.S. The employer has recordkeeping responsibilities and can get into trouble if the records aren’t kept properly or if they are hiring and employing people that don’t have the proper work permission. To the question you asked about seasonal or temporary workers, there are a number of different visa options but for the seasonal workers there’s a particular visa called the H-2B visa.

Employers can use the H-2B to bring in people from outside of the U.S. to work here legally on a temporary basis. There’s a process they have to go through to satisfy the Department of Labor (DOL). First, they must be able to prove there are not enough able, willing, qualified and available U.S. workers. They must also prove the hiring of the foreign workers will not adversely affect the wages or working conditions of similarly situated U.S. workers, and the need for these workers satisfies one of four situations, that if they are temporary nature in the sense it is an 1) intermittent need or 2) a one-time occurrence or 3) peak-load need or 4) seasonal-type work need. If the DOL approves then you go to immigration, which is the Department of Homeland Security (DHS) and you can bring these people in. The DOL will grant an authorized period of stay depending on what your criteria are, but it is usually a limited duration, usually less than a year, more likely six months, maybe a bit longer to ten months, unless it is the one-time peak-lead situation.

Q. Brian: Are there separate categories for agricultural vs. non-agricultural workers?

A. Anthony: Yes, I’ve described essentially blue-collar category work for businesses outside of the agricultural field. There is a separate and distinct non-immigrant work visa for agricultural entities called the H-2A. This one is for picking the fields, dealing with livestock, or transporting goods generated through agricultural operations. Similar criteria are involved with similar restrictions in terms of the length of time people from outside of the U.S. can come in and work. Eligible people from outside of the U.S. are restricted to designated countries the DHS has approved and that list can change from time to time.

Q. Brian: You’ve talked about the H-2 A and B, we also hear about deal about H-1B visa, what sort of workers is that for?

A. Anthony: The H-1B is a popular visa among businesses in the U.S. seeking to employ people with specialized knowledge. That usually means at least afour-year degree from a college or university, or with a masters orPh.D., something that the average person might not have—think engineers, architects, doctors. The most common use for the H-1B right now is in the IT field.

Employers in the U.S. are complaining there are not enough U.S. workers qualified to fill demands in this area and therefore they need to look outside of the U.S. to find the best and brightest and bring them into the country to grow the economy here.

The H-1B visa is allowed for a longer period of time, three years initially, and you can renew it for a second three-year term, then the person is supposed to leave for at least a year. There are steps in place where you have to satisfy the DOL—including you must ensure you will be paying this person the same or more than U.S. workers. Once the DOL signs off then you can ask for permission from Homeland Security’s USCIS division, if all that works then the person can come in, I should add that the number of open slots every year is limited to 65,000 with a four-year degree and then another 20,000 for people with an advanced degree from a U.S. university or college. Those become available in April of every year for work to commence in October of the same year. Last year there were over 200,000 requests for the 85,000 slots and we expect that number to increase this year.

Q. Brian: Speaking with Anthony Monioudis here on the morning show, you mentioned I-9s earlier so let’s talk a bit more about documentation. What is the importance of an internal audit, could you explain that to us?

A. Anthony: Every employer is responsible for generating and maintaining documentation for all of its new hires as of 1987. These are the I-9 forms—they need to be completed and stored. An investigative agency from the DHS called Immigration and Customs Enforcement or ‘ICE’ can come and indicate that it wishes to audit your records. If ICE finds problems with records from paperwork mistakes to other serious problems indicating people who shouldn’t be working there, it can result in civil penalties, and in certain situations, can escalate into actual criminal actions.

It is critical for employers to make sure their paperwork is in proper order and they are ready in the event of an audit request from ICE. To prepare, they can do internal audits to try and self-correct the records to minimize any adverse consequences. Employers can do that on their own. I often tell employers the process and the best way to correct mistakes is to engage an attorney who is experienced in this area to perform a thorough audit and gain advantage of the attorney-client privilege in the process.

Q. Brian: Would you encourage employers to have someone who is specifically in charge of documentation for any immigrant employees?

A. Anthony: Not only immigrant employees, but all employees. Yes, centralizing and defining the responsibilities in a single person or a core group of people goes a long way to minimizing the mistakes or inconsistencies in the paperwork generation, creation, or storage. We strongly encourage HR departments, and for companies that have those departments, they should take the lead responsibility in that area.

Q. Brian: You talked about this going back to 1987 when presumably these records would all have been filed on paper, are those being stored digitally now, or do people still have to keep hard copies of all of these materials?

A. Anthony: The U.S. government is very slow to transition to the digital age but, with the most recent version of the I-9 form (which came out at the end of 2016), there is an option to digitally create, prepare, and store the form. Now, the paper is still the standard, but we are moving into the digital age. The big issue for the digital forms is properly securing them and preventing them from any outside improprieties from cyber-attack. It is very critical if they are going to use software to store documents that it has all of the bells and whistles, and every other proper thing at this time, for that purpose.

Q. Brian: We also have had a voluntary program in place called E-Verify, if you are using this as an employer, is it mandatory now? Or is it going to become mandatory? If you are using it in good faith, can you get by if you make an honest mistake?

A. Anthony: E-Verify, electronic verification, came into being a number of years ago as a voluntary program. Essentially it takes your I-9 information and electronically submits it to the DHS, who reviews the information and gives a fairly instantaneous answer as to whether everything seems appropriate or whether there appears to be a problem. In that case, there is a short window of time the affected individual is allowed to try and cure the problem. If the problem can’t be cured, the employer is not supposed to continue to employ the individual. If the employer does all of that, it is considered a ‘safe-harbor’ and it won’t suffer any adverse consequences.

Under President Bush, E-Verify became mandatory with regard to all employers that wanted to do work with the government as federal contractors. Then a number of states in one form or another made E-Verify mandatory on a state level.

In Virginia, it is a very minor requirement for those doing business with the state government, but in some of our surrounding states, it is much more thorough in the demands that they sign up. The prevailing belief is that the Trump administration is going to push hard to make E-Verify mandatory. Employers should also be aware the government has been mining the data that has been coming into its possession through E-Verify and is developing certain metrics. The particulars of which they have not shared yet, but based on those metrics, if they are particular businesses or industries could be targets of further investigation.

Q. Brian: Now, I want you to give us a cautionary tale of a company, while it was not breaking law, was not doing as good a job keeping records as it might. Tell us what happened to Abercrombie & Fitch.

A. Anthony: In their Michigan operation a few years ago, Abercrombie & Fitch was audited and the audit determined nothing was done improperly in terms of the employees they had employed. It was just their paperwork was a mess and it resulted in a million dollar fine which was a record at that time and caught the attention of everybody about the importance of keeping their paperwork in proper order and engaging in regular audits.

Q. Brian: Let’s finish up with the big picture as far as enforcement. Under theTrumpadministration is it fair to think you’ll see more on-site investigations, with greater emphasis on the paperwork being right and more general oversight?

A. Anthony: Yes, there will be more on-site investigations. ICE is often considered to be an FBI wanna-be. They look forward to going to investigations, finding problems and really trying to develop criminal actions from the problems they are finding. They prevailing thinking is under the Obama administration, ICE was sort of being tethered from all the good things it could do and it is looking forward to being able to fully unleash its efforts and investigate and take action against employers that it thinks is doing things improperly.

Q. Brian: Alright, very good! Anthony Monioudis, attorney leading the Immigration practice at Woods Rogers. By the way, if you would like more information and want to contact Anthony go to woodsrogers.com. Anthony, thanks for joining us this morning!

A. Anthony: Thank you very much!