Immigration: The Cocktail Hour
It should come as no surprise that during the course of my legal career that I’m often asked, while in a social setting, for advice. As a practitioner in the field of immigration law I’m asked my opinion on pending legislation, the current state of affairs and of course how to handle an issue involving a loyal worker. This article will distill some of the issues that have been presented to me and the advice that was administered. Keep in mind that while you may have a similar situation, this article is not meant to be used in lieu of consulting with your own immigration counsel.
I am often asked about the use of E-Verify and I-9 compliance. Typically a restaurant owner will want to know if she “really” needs to enroll in E-Verify or to keep up to date with her I-9 forms. The short answer is “maybe to E-Verify ” and “yes to I-9 compliance.” The current state of the law in Georgia requires all employers who do business with the state must be enrolled in E-Verify. When the law first went into effect, there was a staggered approach as to which employers had to enroll with E-Verify. Today all employers must be with the program if they are a contractor or sub-contractor with the state of Georgia or with any of its local governments. The E-verify program also offers an additional layer of security during a government audit situation, provided that the system has been properly used.
Unfortunately, the mandatory signage that employers display in their business can have a chilling effect on their ability to attract workers and thereby staff their business. I have heard that people who are unsure of their legal status will not apply for a job for fear that they might be turned in to Immigration and removed from the United States. In some instances, these are children of foreign nationals who came to the United States illegally or overstayed their lawful visa. These children, who are considered without status, could be eligible for the Deferred Action program that will allow them to remain in the United States and to legally work.
In response to the I-9 compliance questions. The I-9 form is the basic tool that employers must use to ensure that they have a workforce that is legal to work in the United States. Every employee, with very little exception, should have a properly completed I-9 form on file. If the owner is working at the business or for the organization and drawing a paycheck, then they too would need to have a properly completed I-9.
Aside from compliance issues, people usually ask me about “special circumstances.” Meaning, they have an employee who has been loyal to them and has been with the business for a long period of time and they don’t want to lose them because of an immigration status issue. Unfortunately, in the immigration world, no good deed goes unpunished. By keeping a loyal employee on the payroll, and who does not have the legal right to work in the country, you are jeopardizing the entire business. Many times that loyal employee might be guilty of using someone else’s Social Security Number in order to give the pre-tense that they are legal to work. That’s a long way of saying that someone is probably committing Identity Theft. As a business owner, the greater good is to keep the business on solid legal ground. Do not jeopardize your hard work and your other loyal employees by retaining someone without work authorization. More specifically, if the employee in question actually tells you that they do not have work authorization, then that employee should be removed from the payroll. Contact your immigration counsel about possible alternatives or programs that the employee might be eligible for, but your primary duty is to protect your business.
On a positive note, entrepreneurs ask me about starting a new restaurant venture with foreign talent. This is definitely a more intriguing conversation topic. The ability to bring a foreign national with a special skill to the United States is an exciting prospect. It can also increase the level of anxiety to an already stressful enterprise. For the novice restaurateur, I strongly recommend that they discuss with counsel the requirements of the visa category that are pursuing for their foreign national. Along with the requirements, the time-line to obtain the immigration benefit must be factored into the equation. Explore the immigration angle at the early stages of the business plan development. If the foreign talent will be working as the chef, and is therefore the linchpin of the enterprise, then it is a must to discuss the immigration issues with your counsel. There are too many instances of a proprietor waiting to open their restaurant while their chef is stuck overseas in immigration limbo. Work out the timelines well before you plan on opening.
There have been instances where a multi-national enterprise is seeking to bring talent to the United States in order to train their American employees. I have had success bringing food tasters to the United States in order to train workers on how to source ingredients and re-create specific flavor profiles so that they align with the company’s requirements around the globe. When it comes to moving foreign talent in the restaurant industry, the larger the business enterprise the better chance for success. The reason being is that the larger businesses have greater name recognition and this fact alone could push an Immigration Examiner toward approving a petition. However, as a caveat, a single site fine dining establishment will also do well. The higher level of perceived expertise to create the dining experience the stronger the case. The best course of action is to discuss your vision with your immigration counsel. A certain amount of creativity and analysis by your attorney will serve you well.
Finally, the state of immigration reform. Will it happen? If so, when? One can only hope that Congress will figure things out on this topic. The best advice is to follow the immigration laws that are currently in effect and don’t wait for Congress to do anything anytime soon. As an immigration attorney I’ve seen too many opportunities pass us by when it comes to repairing our broken immigration system. At this point, we have a better chance of predicting the next snow storm then we have of predicting when immigration reform will take place.