The 10 Biggest Legal Mistakes Physicians Make Regarding Immigration Issues When Hiring Employees

Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)

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Executive Summary

Physicians, as many other business owners, are often unaware that the immigration law affects their employment practices. As a result, they unknowingly violate rules that can lead to significant sanctions for them as an employer as well as possible deportation of the employee. This section alerts practitioners to some of the areas in which they must focus their attention. If a foreigner appears to be the most qualified of those interviewed, the person responsible for hiring should contact a qualified immigration attorney to clarify what must be done to ensure compliance with current law and practice in this area.

Mistake 1        Failing to Require the Completion of an I-9 Form

Since November 1986, there have been penalties for employers that “knowingly hire” individuals who are not authorized to work in the United States. As part of this law, employers are required, within three business days of the start of employment, to obtain a signed statement from each employee that the employee is authorized to work in the United States. This is true for all employees, even those born in the United States.

Action Step     Physician employers should make sure that each employee is required to complete an I-9 form, and that upon completion, they are in a position to decide whether the employee is authorized to work for them without further action on their part.

Mistake 2        Asking Some Job Candidates and Not Others If They Are Authorized to Work in the United States

Although sanctions accrue if it is discovered that employees do not have permission to work, it is a violation of equal employment laws and could be deemed discriminatory to ask such a question before hiring an individual. One cannot choose which potential employees to ask about their immigration status.

Action Step     Physicians should make sure that if they ask questions about immigration status during the hiring process, they ask those questions of all potential candidates as part of the routine hiring practice.

Mistake 3        Completing the I-9 Form Improperly

The I-9 form is constructed in a manner that makes it easy to omit certain information. Among the most common omissions is the failure to include the date of hire, since it is buried in the middle of a paragraph. Every item on the form must be completed, in both the portion for the employee and the portion for the employer, or there will be potential financial liability for the employer. However, the government deems some omissions to be far more serious than others.

Action Step     Physicians should assign one individual in their group to have full responsibility for the completion of this form. That person should have the experience to know what is needed and can properly comply with the paper requirements of this law. Physicians who are concerned about prior compliance may choose to have an immigration attorney do an audit of their I-9 files.

Mistake 4        Asking Employees for Specific Documents

It is natural for physician employers to ask to see an employee’s Social Security card, birth certificate, or another document, but that request is deemed illegal under all circumstances. Even in cases in which there is an expiring employment authorization card, the employer may not ask to see the “new employment authorization document” as such, but rather request only proof that the individual is still authorized to work.

Action Step     Employees must be shown that the reverse side of the I-9 form lists a number of alternative identification documents. They must choose one item from Category A, which would prove both identity and authorization to work (e.g., a U.S. passport) or one item each from Category B and Category C, each of which would provide the required proof. The documents provided by employees should be carefully referenced, although copies need not be kept. The documents should be described on the I-9 form without using abbreviations or shorthand notations.

Mistake 5        Failing to Recognize Fake Documents

To date, employers have not been required to be the guarantors of the validity of the documents received, but judgment should be demonstrated in accepting papers that appear to be blatantly fake.

Action Step     When presented with documents that appear to be blatantly fake, physicians or the physician’s hiring manager should request additional documents, but again, with no specificity as to what documents the employee should provide.

Mistake 6        Not Tracking Expiration of Work Authorization Dates

Many individuals, including foreign spouses of U.S. citizens who are granted work authorization in annual increments, have permission to work for a fixed period only. There are also graduates of U.S. colleges and universities who receive permission to work for one year after graduation. It is essential to ensure that these workers are not working after their authorization is terminated because the employer can be charged with constructive knowledge that such employee is no longer legally working. Also, if the employee has overstayed his or her visa or has been working without authorization, any visa the individual has is automatically voided and the individual from that point on must always return to his or her home country to obtain a new visa.

Action Step     Physician employers should keep a tickler file of all employees in order to track I-9 forms for reverification of work authorization. In this way, it is possible to check on employees whose authorizations are temporary and must be renewed in a timely fashion. It is also necessary to track the date of hire even for those who are permanent residents or U.S. citizens, since I-9 forms must be retained for either three years from date of hire or one year after termination, whichever is later. 

Mistake 7        Keeping I-9 Forms in Personnel Files Located Where the Employee Works

Physicians who have several clinics or offices at separate locations might maintain the I-9 forms at the office at which the employee works. Doing so can create problems if a random audit is conducted by the immigration authorities, since they would require access to all of the I-9 forms at the same time and place. Although the U.S. Citizenship and Immigration Services and the U.S. Department of Labor are required by law to give a three-day notice for such audits, no warrants or subpoenas are required by law; however the federal agencies may obtain them if they so desire.

Action Step     Physicians should create a centralized file separate from personnel files for the I-9 forms. In this way, if an audit occurs, it would be a simple matter to provide the necessary documentation, without using staff time to try to separate out what is needed to comply. If the files are in different locations, it may be more difficult to meet the time requirements; if the entire personnel file is presented, there is always the possibility of additional irregularities or personal information being made available to the agencies, which could create additional problems.

Mistake 8        Not Knowing an Individual Is Eligible for Employment Only by the Sponsoring Employer

The U.S. government has several different visas. Each visa is identified beginning with a letter for those who are permitted to be in the United States but who are not either U.S. citizens or permanent residents. Also, each visa has different requirements, and each has different conditions for compliance. In general, the holder of a particular visa is not able to change employers without first obtaining a new visa. This process can take considerable time and cause a significant delay in hiring.

Action Step     Physicians should make sure that the person responsible for making the hiring decision pays attention to the kind of permission the employee has for working in the United States. A person who already has an employment authorization document (which looks a lot like a driver’s license) may usually work for any employer during the valid period of the document. If, however, a person is able to show only a visa that begins with a letter such as L-1 or J-1, that person is not able to work for a different employer without receiving approval for a new visa. There are special portability rules for the H-1B visa. 

Mistake 9        Relying on Organizations That Promise to Bring Health Care Professionals From Abroad

Although it is generally conceded, even by the U.S. Citizenship and Immigration Services, that there is a shortage of nurses and physical therapists in the United States, the ability of such foreign-trained professionals to obtain visas in the United States is fraught with difficulty. There are stringent requirements to be met (e.g., knowing English, passing specified examinations, and being licensed in a state) before an individual may even be considered for a visa by the U.S. government. As a result, many foreign health care givers have been misled and “fleeced,” and many U.S. health care facilities have been misled and charged significant sums for individuals who never arrive.

Action Step     Physicians should make sure that if they are seeking to “import” employees, they deal with reliable agencies that have a proven track record. Physicians should check with others in their specialty or in their geographic area to find out if they have had success in such recruitment. Physicians should not be fooled by vague promises. It is very difficult to hire foreign-trained health care providers. In fact, physicians may have better luck hiring foreigners who came to the United States for their education and who will not have to run the gauntlet of all of the necessary requirements, although there will still be many hurdles for them to overcome.

Mistake 10      Not Realizing “J-1” Physicians Are Required to Return Home for Two Years

The United States has responded to charges of brain-drain by permitting physicians and others to enter the United States for educational purposes as exchange visitors, with the understanding that when they complete this education, they will return to their home countries and provide the quality treatment for which they were trained. Even marriage to a U.S. citizen does not waive the two-year requirement. The J-1 visa holders are not eligible to work elsewhere, and the limitations on their ability to work as a physician in the United States are extensive.

Action Step     For those who provide services in areas considered by the federal government to be “underserved” and if the J-1 visa holder is a primary care physician or can perform such services, there is the possibility of obtaining a waiver. This is an arduous and expensive process, however, and will result in significant delays in obtaining the services of such a doctor.

Conclusion

Immigration law is complicated and ever changing. To ignore it is to do so at one’s peril. A rudimentary understanding of the principles of this field should be required for at least one member of a physician’s office staff.

Additional Resources

  • Divine, Immigration Practice (Juris Publishing 2003)
  • Handbook for Employers: Instructions for Completing Form I-9. (U.S. Government Printing Office M-274) (Distributed by the U.S. Internal Revenue Service)
  • Kurzban, Immigration Law Sourcebook, 9th (American Immigration Law Foundation 2004)

Written by:

Shoshana B. Tancer, Esq.

Peer reviewed by:

Jeana Webster, Esq.

Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them