Employers walk a legal tightrope
Illegal immigration is built into U.S. law.
That’s the no-holds-barred truth, spoken by Mira Mdivani, an Overland Park attorney specializing in immigration law.
“Employers have to violate the law, and people have to come
illegally, and now the potato is too hot to handle,” Mdivani said in
The numbers of H1B and H2B work visas authorized by Congress are
inadequate, she said. The annual visa quotas often are snapped up by
the first day of the fiscal year, leaving employers another year of
time and expense to try to get legal work permits for people they hire.
At a recent employment law seminar sponsored by the Overland Park Chamber of Commerce,
Mdivani counseled about a dozen employers who were trying hard to dot
their i’s correctly and stay out of trouble if immigration officials
Mdivani congratulated them on their concern — and then presented a daunting outline of how to hire immigrants legally.
Currently, she said, she’s representing an immigrant whose work visa
has expired. The system is so backlogged, though, that it may be a year
before her client gets the updated paperwork that certifies legal
The client’s employer thinks the worker must be fired because of the visa expiration.
“That’s not right,” Mdivani said. “You don’t have to get rid of the
person. The person is perfectly authorized to work. The permit is
automatically extended, even if the paperwork takes a year.”
But extensions are different from first-time authorizations. And
that’s the truly hot potato. Countless U.S. employers simply ignore
immigration law and hope the authorities don’t visit.
That’s why it was somewhat bittersweet to hear the detailed
questions from the handful of Overland Park business operators who
attended Mdivani’s presentation.
Take their concerns about proper handling of I-9s. Those are the Employment Eligibility Verification forms distributed by U.S. Citizenship and Immigration Services.
The Immigration Reform and Control Act of 1986 required employers to
verify the identity and work authorization status of all employees by
filling out I-9 forms. It’s a headache that, essentially, asks
employers to be immigration police and forgery experts.
But the worries about ferreting out illegal workers don’t stop
there. Employers who want to walk a legal line also need to be careful
about how they handle their I-9 paperwork.
For example, Mdivani said, a company leaves itself wide open for
discrimination lawsuits if it asks for I-9s only from workers who
appear to be foreign-born.
“If discovery finds that ‘Peter Smith’ doesn’t have an I-9 on file
but ‘Pedro Rodriguez’ does, that could be a problem. The law needs to
be applied the same to everyone,” Mdivani warned.
And then there’s the matter of when an I-9 form is presented to the worker. It must be after the job offer is extended, not before, to avoid the appearance of discriminatory hiring practices.
That fine line between immigration and civil rights law is a tightrope for the employers who are trying to do things right.
And that’s a sector that hasn’t been massing in demonstrations in recent weeks.