Construction Law

5 Common Immigration Employment Mistakes for Contractors

Hiring top talent is key in the construction industry. Whether it’s hiring engineers or skilled builders, there are plenty of reasons to consider talent from outside the U.S. Unfortunately, there are a few common pitfalls to be aware of in regard to employment immigration.

In this post, a Tampa employment immigration lawyer shares the most common immigration employment mistakes in Florida, as well as ways to prevent them and what to do if you have received a notice regarding the sponsorship of an employee.

1. Failure to Comply with I-9 Requirements

The I-9 form is required for all new employees, regardless of the industry. This form requires verification of specific documents that prove that the employee can legally work in the United States. Often, a passport, work permit, social security card, birth certificate, or other similar documents are sufficient. However, depending on the person’s specific situation, you may need additional documentation.

Gathering these documents is an important step, and filing the I-9 is required by law; however, sometimes, contractors may be rushed to onboard someone in order to get the project started quickly. Although it’s tempting to cut corners and let the employee begin work while gathering their documentation, this is a huge mistake that can cost you hefty fines. To avoid these penalties, the I-9 must be filled out on their first day of work.

2. Forgetting to Update Important Information for I-9 Requirements or Visa Applications

It’s important to update I-9 information every three years. Failure to do so can result in loss of visas, fines, and other penalties. Further, it’s important to make sure all visa information is up-to-date and in compliance.

United States Citizenship and Immigration Services (USCIS) requires significant documentation from the employer and the employee in order to grant a work visa. For instance, employers must provide company and position information as well as salary information for the position being offered. Because the requirements may be extensive, you need to talk to an immigration lawyer to see which visa classification you may qualify for.

3. Accepting Copies or Receipts Instead of Real Documentation

It’s incredibly tempting to take an employee at their word when they say they are legally allowed to work but simply cannot find their papers. Unfortunately, this can cause issues down the line if it’s discovered that an employee provided falsified documentation.

The employer may accept documents that reasonably appear to be real and should keep copies of these documents in order to comply with any potential audits in the future. A Tampa business immigration lawyer can help you make sure that all documentation is recorded and stored properly to avoid possible issues in the future.

4. Misclassifying an Employee

A major issue that occurs not only in the employee immigration sphere, but the greater workforce as a whole, is the misclassification of an employee. This can create major issues in regard to taxes, especially if you are audited.

An example of misclassifying an employee is by coding genuine employees as contractors. A business may pay an independent contractor and an employee for the same or similar work, but there are important legal differences between the two — one of the key differences financially being the taxes owed and by whom. For the employee, the company withholds income tax, Social Security, and Medicare from wages paid. For the independent contractor, the company does not withhold taxes, leaving them potentially on the hook for a higher percentage of tax payments. Employment and labor laws also do not apply to independent contractors.

To determine whether a person is an employee or an independent contractor, the company weighs factors to identify the degree of control it has in the relationship with the person — meaning, they must discern if they have control over how and where the work is completed. For example:

Does the company control the business aspects of the worker’s job? These include arrangements like how the worker is paid, whether expenses are reimbursed, and who provides tools and supplies.
Is there a written contract or employee benefits such as a pension plan, insurance, or vacation pay?
Will the relationship continue, and is the work a key aspect of the business?

Not only are these distinctions important for taxes, but they are also important for immigration because a non-U.S. citizen cannot be hired as a “contractor” in order to sponsor a visa application. If you are confused about the best way to classify employees, a Tampa business immigration attorney can discuss all of the requirements for each.

5. Delaying the Visa Application Process

When companies seek work visas on behalf of incoming employees, they often underestimate the time required to complete the process. There’s a great deal of supporting documentation required from the employee, along with specific processes that the employer must fulfill. It’s important to start this process well before you need the employee to start work.

If you are a construction professional looking to sponsor an employee visa, Tampa contractor lawyers will help you understand all of the requirements and will help you remain on track for your project.

As a construction professional facing any employment issues, a Tampa construction lawyer is necessary to help you remain in compliance. Further, a lawyer with Cotney Attorneys & Consultants can assist with a variety of needs, including liens, stop-work orders, and more.

If you would like to speak with a Tampa construction attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.