Common Employment Immigration Pitfalls

Immigration can be a powerful driver of innovation, growth, and competitiveness, giving employers access to specialized skills and global perspectives. The rules that govern this system exist to protect U.S. workers, ensure fair wages, and maintain the integrity of the hiring process, but they are complex, technical, and rigorously enforced.

Even small missteps can trigger audits, penalties, and lasting reputational damage. These risks are amplified by evolving regulations, aggressive enforcement priorities, and the technical requirements of each visa category. Effective legal counsel is critical to navigating these obligations, anticipating issues before they arise, and building compliance systems that safeguard both the company and its workforce.

Below are some of the more common pitfalls and practical steps to avoid them.

1. Failure to Recruit in Good Faith (PERM)

What It Means: Under the PERM (Permanent Labor Certification) process, employers must make good faith recruitment efforts—meaning fair, inclusive, and consistent with their standard hiring practices, without discrimination based on citizenship or immigration status.

Why It Matters: In recent settlements, major tech companies like Apple and Facebook were penalized for deviating from standard recruitment practices. For example, Facebook required physical mail for PERM applications—even though its usual hiring allowed online submissions—and failed to track applicants cons

Risk to Employers: Such practices can trigger Department of Justice enforcement, costly settlements, reputational harm, and increased scrutiny.

How to Avoid It: Always mirror the company’s usual recruitment channels (e.g., online application systems), widely advertise positions, document all applicant communications, and ensure dates, locations, and methods remain consistent and nondiscriminatory.

2. Failure to File an Amended H-1B Petition

What It Means: When there’s a material change to an H-1B worker’s job, such as a change in worksite outside their original approved Metropolitan Statistical Area (MSA), modifications to duties, salary, or employment structure, employers must file an amended petition with USCIS before the change takes effect.

Risk to Employers: Noncompliance can trigger USCIS revocations, site-visit audits by FDNS, referral to enforcement units, and potential penalties.

How to Avoid It: Work with immigration counsel to assess changes, file amendments promptly (even in the case of remote or client-site moves), and maintain documentation of all filings and USCIS responses.

3. Failure to Pay Withholding Tax on OPT Workers After Five Years

What It Means: International students in F-1 status working on OPT (Optional Practical Training) are generally exempt from Social Security and Medicare (FICA) taxes only during their first five calendar years in F-1 status. After that, they typically become taxable unless otherwise exempt.

Risk to Employers: Continuing to withhold FICA improperly can result in underpayment of mandated taxes, unexpected liabilities, and potential IRS audits or penalties.

How to Avoid It: Implement systems to flag OPT workers approaching the five-year exemption mark. Collaborate with payroll and tax teams to update withholding once the exemption period ends, and ensure accurate reporting of FICA contributions.

This brief overview highlights only a few of the many compliance challenges employers face when hiring and managing foreign national employees. True compliance requires ongoing attention, a clear understanding of evolving regulations, and systems that support accuracy at every stage of the process. Our role extends beyond advising on individual cases when we work with companies to design effective training programs and implement robust internal systems that ensure long-term compliance, reduce risk, and support a legally sound, competitive workforce.

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