Position your Staffing Company and Clients for Compliance

By: John Rossheim

Like employers in many industries, staffing firms and their clients are unsure what to expect as President Trump and the GOP-led Congress contemplate how to act on their campaign pledges to reserve more U.S. jobs for American citizens.

Despite these uncertainties, it’s prudent for staffing firms to take action now to examine, and if necessary, beef up compliance with I-9 employment eligibility verification, H-1B and other work visas and related issues.

That said, many of the changes in labor law and regulation that the chief executive and Congress are considering would take months or years to enact and implement. Federal regulatory processes often require comment periods, for example.

It’s also unclear how the new administration will navigate potential conflicts between the interests of its populist and corporate constituencies. 

“Trump’s past would indicate a more pro-business mindset when it comes to visas,” says Jeffrey Bell, an immigration attorney and shareholder at Polsinelli.  “He’s used visa workers for a number of his businesses.”

Here are key points for staffing firms that seek a firm foundation for compliance related to employment of foreign nationals in 2017 and beyond.

Gaps in I-9 compliance are common. I-9 seems like a relatively simple form, but countless employers’ verification procedures fall short. 

“Companies know they have gaps in their I-9 programs,” says John Fay, vice president and general counsel at LawLogix, which sells immigration-status compliance software. “I guarantee if employers do a self-audit they will find all kinds of problems they weren’t aware of.”

When to audit I-9 compliance? Now. Now is the right time for staffing firms to examine their own I-9 processes — and to urge their clients to do sospecially with the revised Form I-9, which must be used beginning Jan. 22, 2017. 

“This is the time to start on your internal I-9 audit so your documents are in order; you know where everything is and the expiration dates on your workers’ visas,” says Lynsey Foreman, an HR consultant with staffing firm Employer Flexible.

The revised I-9 comes with 15 pages of instructions. Note that the form contains some additional data fields; also note the rule changes regarding which fields can be left blank, for example.

A Federal I-9 audit is serious business. Staffing firms and other employers should assume federal auditors will use a fine-toothed comb on I-9 records. There’s been a steady stream of audits since 2009, and “some employers who employ unauthorized workers try to make things a bit fuzzy by using a staffing agency,” Fay says. 

Careless I-9 processes can create discrimination claims. In their employment eligibility procedures, staffing firms and other employers must take care to avoid actions that could be deemed discriminatory. 

“There has been a huge increase in the number of I-9 discrimination cases,” says Fay. “The I-9 form says you can’t discriminate, and you can’t ask lawful permanent residents to ‘show me your green card.’ ” 

That makes it critically important for staffing firms and their clients to train all relevant workers to follow the I-9 form’s instructions. The same goes for the Labor Condition Application for H-1B visas.

Visa workers are an important talent pool for staffing firms. Staffing firms should also undertake an audit of their compliance with H-1B visa rules and their vulnerability to potential reductions in available work visas. 

“Those staffing firms supplying H-1B workers are a little bit nervous,” says Barry Asin, president of Staffing Industry Analysts.

Employers are trimming plans to hire foreign nationals. For staffing firms and their clients, the strongest defense against the potential curtailment of work visas is to reduce dependency on them. 

Since President Trump was elected, “our clients are taking significant measures to stop or minimize their hiring of visa holders,” says Ashwin Bharath,” COO of Revature, a software and staffing firm.

Revature boosts its own technical recruiting with a 12-week software engineering development program for recent college grads who have shown potential to work in technology. This training program does not accept applications from students who would require visa sponsorship to work. 

Visa restrictions could drive up wages. Curtailment of work visas could induce sticker shock for staffing clients; now is the time to begin educating them. 

“If there are further restrictions on H-1B, it will increase wages for software engineers,” says Joe Vacca, chief marketing officer at Revature.

The complexities of compliance could create business for staffing firms. On the bright side, a greater emphasis on compliance for firms that employ foreign nationals could increase the attractiveness of staffing solutions. 

“Anything that makes things more complex and puts more burden on employers is likely to bring business to staffing firms,” says Asin.