Spotlight on US immigration compliance for UK employers

If you’re a UK business with operations in the US, or you’re advising clients who employ staff there, it’s important to understand that immigration compliance works very differently across the Atlantic. Recent developments have intensified the focus on immigration enforcement. For instance, the Trump administration has initiated Operation Safeguard, aiming to detain and deport undocumented migrants in urban areas. This operation underscores the administration’s commitment to stringent immigration policies. We’ll speak to an immigration expert from the states about the US perspective and how immigration compliance is different over there. 

In the UK, we’re used to a system built around sponsor licences, strict reporting duties, and formal Home Office audits. Employers must apply for a licence before sponsoring skilled workers and are subject to ongoing oversight and enforcement. But in the US, immigration compliance is much more document-driven and decentralized. The key mechanism is Form I-9, which every employer must complete for each new hire. And while there are government audits, these tend to be reactive, often triggered by specific tips or enforcement initiatives. 

There’s also E-Verify, the US government’s online system for confirming work eligibility, but unlike the UK’s Home Office online system for checking visa holders, E-Verify is optional in many states, though mandatory for federal contractors and in some jurisdictions. This state-by-state variation can be a compliance trap for businesses operating across multiple US locations.

And then there’s visa sponsorship. Whereas the UK system requires a formal sponsor licence, US employers sponsor workers on a case-by-case basis, typically under visa categories like H-1B for skilled workers or L-1 for intra-company transfers. Sponsorship involves specific salary, role, and eligibility requirements, and is closely tied to the terms of employment, but unlike in the UK, there’s no universal system of licence-based sponsorship—each case stands on its own.

So, while the US model may appear lighter touch on the surface, the enforcement regime is still robust—and businesses need to ensure their documentation is accurate and up to date. 

So, let’s get a view on this. Tiffany Baldwin is an immigration lawyer at law firm Husch Blackwell in St Louis, Missouri, and earlier she joined me by video-link. First, that US system for new hires:

Tiffany Baldwin: “So we have something called the I-9 process and that's been around since the late 1980s and it's really just a paper form, or electronic, for some employers to choose and there's a part that the employee completes with their basic information and social security number and then there are documents that they need to bring in that the employer reviews to verify that they are lawfully able to work. So there's one list of documents that covers identity and employment authorisation. So it could be, you know, a US passport or a green card - so it has both the picture and the authorisation to work in and of itself - and then there is a list B and list C, and one is identity and list C is the employment authorisation, like a visa approval, which we call an I-797, which would be proof that they are in H-1B status, or O-1 status, and then they would have another identity document to match the name with the face. The employer signs off on that and all the I-9s are kept together, and they are even kept after the employment ends for a period of time and that's really it on the I-9. It’s a very basic form but it’s very easy to mess up. They forget things, or they don't put the expiration dates or whatnot.”

Joe Glavina: “Can I just ask you about the consequences of making those mistakes, Tiffany? How does that play out in the states?” 

Tiffany Baldwin: “Yes. So the there is a mechanism for Immigration to come in to audit the I-9. It’s not a regular check, they don't have to turn the I-9 in, it’s just usually random audits. Sometimes they focus on a particular industry, or there are other triggers. So maybe there was a complaint by a former employee that, oh, they're employing a whole bunch of undocumented people, or another federal agency, or state agency, has passed on information that there might be undocumented workers or unauthorised workers, and so that will initiate an audit and the employer is given three business days to go ahead and put all the I-9s together and pass it off to the government and they review it to find errors. Now, some of those are correctable errors. So, they forgot to put the date that of hire, or they forgot to put the social security number, but it existed, and so those are correctable. Employers are given a time to correct and so that usually doesn't involve fines but there are some things that can't be corrected such as if you didn't do an I-9 within the required period of time, you can't go back and do that, or you find out that they asked for too many documents, or they asked for the wrong documents, or they presented the wrong documents. It’s a fine by violation, and some of the minor ones are, I think, it’s around $280 per violation, but it can go up. Also there are factors that increase the fines. There are five factors that increase or lower the fines. So if the employer does regular audits, so they do self-audits on a regular basis, that can decrease the fines. Or if this is their fifth government audit and they're still not making the appropriate changes and they're still employing undocumented, then that could increase the fines. Then if there is a widespread employment of undocumented, then that might even go to criminal fines if they’re knowingly hiring, or knowingly employing, someone that is not authorised to work.”

Joe Glavina: “I just want to move on to work authorisation. In the UK, there’s no mandatory government-run system like E-Verify for checking work authorisation – employers either check physical documents or use an online system for visa holders – but in the US you have E-Verify. How does that work and when are businesses are required to use it?”

Tiffany Baldwin: “Right, so there are some states that require the use of E-Verify which is essentially just an electronic version of the I-9 but because it is connected to a database you get that kind of automatic feedback on whether or not that person is authorised or not, at least in the systems, and then that depends on how good the government databases talk to each other. Some states require it, so if there are federal contracts there might be a requirement for E verify, for national students that graduate from the United States, they get an employment authorisation period of one year but if they're from a STEM field, they get two additional years, but only if they are working for an employer that is enrolled in E-Verify. Then there are obviously companies that can just voluntarily join E-Verify. So what happens there is they enter the same information that they would on the I-9 – they still have to do the paper I-9 or the electronic I-9 – then there's either a confirmation that, yes, this person's good to go, or there's a tentative non-confirmation, so there's something, maybe the social security numbers off, or maybe the new employment authorisation hasn't been updated, and so the employer has to inform the employee, hey, we have this tentative non-confirmation, you have a certain period of time to either go to the social security office, or go to Immigration, or bring other documents to rectify the situation, and then they enter that information into the E-Verify system and then they either get a final confirmation, or a final non-confirmation, and then the employer can decide. Sometimes it's just because the database is off – there have been US citizens that have gotten final non-confirmation of employment authorisation. So the employer can choose to continue to employ that person or they can say, well, it doesn't appear that you're authorised to work and terminate that employment.”

Joe Glavina: “If we can move on to sponsorship and your H-1B system. Here in the UK, if an employer wants to hire a non-UK worker they've got to first apply for a sponsor licence, and once they've got that, they can sponsor skilled workers provided they meet salary thresholds and certain other conditions. How does the US system for hiring foreign workers operate?”

Tiffany Baldwin: “Yes. So, there's kind of a potpourri of non-immigrant visa categories, and some of them are for employment, and the biggest one is the H1-B and those are for what they call ‘specialty occupations’, which is not necessarily super specialised, but it's really any job that requires, as a minimum, a bachelor's level degree in a specific field, or specific group of fields. So it can't just be like, oh, we want any sort of four-year degree, any sort of baccalaureate degree, it has to be kind of specified. So first the employer would file something actually with the Department of Labor attesting to the fact that they are going to pay a certain wage – we call it the prevailing wage – and that is the wage for that position at that level in that geographic area. So, you know, an entry level civil engineer, bachelor's level degree, that would be a level one and then if it’s maybe a senior civil engineer that requires six years of experience that might be a level four – there are just the four wages – and they have to agree that they're going to pay at least that prevailing wage, or the actual wage. So let's say there's five civil engineers, the prevailing wage is $60,000, but all those other engineers, the US engineers are making $65,000, so that then becomes the threshold wage. So paying the wage, that they are not firing any US workers in order to hire this foreign national worker, and the wages and working conditions of the US workers are not going to be impacted by the hiring of this worker. So that is sent to the Department of Labor and they come back in a week with a certification and then there is a petition that is sent to USCIS, so United States Citizen and Immigration Service, and that includes details about the employer, the qualifications of the employee, and obviously the job description to show that, yes, this is a job that is an H-1B job, it is a specialty occupation that requires a bachelor's level degree. Once they’re given H-1B status, they're given kind of three-year increments, but the maximum is six years unless they're in the Green Card or the permanent resident pipeline, then they can get some extensions from that, but that's the primary one. Now, if there's a multinational corporation and they want to transfer managers and executives, or really specialised workers, from a subsidiary or parent or affiliate from the UK to the United States, there is a special visa called the L-1 that purpose. There are visas for those that have extraordinary ability – so they're really super bright scientists or business people – that’s called an O-1. So there are other types of employment visas, but the primary one is the H-1B. It is also one of the few visas  where there is a limited number of them, and so there's a big supply and demand, if you will, and in March there's a lottery. So employers will register the person that they want to apply for an H-1B for, into this lottery, and then the selection is done at the last week in March and if they're selected then they have three months to file that H-1B petition. So it is a bit of a hunger games, or competitive situation.”

Joe Glavina: “Some of this sounds pretty straight forward but we know there are plenty of employers who get this wrong. Given that risk, I guess you’d advise them to take legal advice early before Immigration get involved?”

Tiffany Baldwin: “Oh, yes. It seems like the forms are very straightforward but, Immigration, they really kind of look through these cases with a fine tooth comb and things that might be obviously approvable they might have an issue with and so sometimes we come into the situation where someone calls us after they've already gotten like a seven page request for additional evidence from Immigration because they tried to do the H-1B filing on their own and now Immigration is asking for everything under the sun, and so that's when they come to us. So kind of a stitch in time saves nine. I think getting legal counsel one - there might be other options out there - there's multiple immigration options. Sometimes it's easier to maybe pursue a permanent resident path than to wait around for the H-1B lottery if that's the case. So yes, legal counsel is very important especially for employment-based visas.”

If you are a UK business with a presence in the US and you’d like further information or help with US immigration compliance please do get in touch with Tiffany. Here details are there on the screen for you.