New Employer Liability Rules on Joint Employment and I-9 Compliance

Joint employment definitions are being interpreted more broadly, increasing employer exposure to liability for worker misclassification and wage claims. From our experience handling corporate immigration and compliance, companies using contractors or staffing agencies must carefully document actual control over workers to avoid joint employer status under 29 CFR §791.2 and related guidance.

For Chinese executives on L-1 or EB-1C visas, managing US subsidiaries means heightened scrutiny on employment relationships. USCIS and DOL may examine if the US entity exercises sufficient control over employees, affecting eligibility and compliance. We advise clients to ensure clear organizational charts and employment agreements reflecting direct employer status, as we saw last quarter when a fintech client’s L-1B petition faced RFEs due to ambiguous contractor roles.

Employers must audit I-9 forms for completeness and timeliness, as errors often lead to fines under INA §274A. We recommend HR departments revalidate I-9s for all current employees and implement regular training, especially for companies sponsoring H-1B and O-1 workers. Additionally, web accessibility rules require updating online recruitment portals to comply with ADA standards, reducing discrimination risk.

EB-5 investors overseeing project employees should confirm that workforce classification aligns with USCIS expectations to avoid jeopardizing project viability. From our practice, maintaining detailed payroll records and avoiding misclassification claims protects the investment’s immigration credibility. We suggest coordinating with immigration counsel and labor experts early to structure employment relationships properly. In summary, these developments underscore the importance of proactive compliance. We encourage all clients, especially those with US subsidiaries or investment projects, to conduct thorough employment audits and update internal policies. Taking these actions now can prevent costly enforcement actions and safeguard visa eligibility.