Five key immigration risks every business needs to know

by 06 May 2013

Historically, human resources and global mobility teams have been responsible for managing a company’s immigration requirements, giving these professionals a good understanding of immigration compliance and what it means for their business.

However, times are changing. Immigration compliance is subject to increasing scrutiny, oversight and regulation by the Department of Immigration and Citizenship (DIAC). Consequently, immigration risks need to be considered by businesses as a whole. Corporate counsel, company secretariats and risk management teams are now as much a part of the immigration compliance process as human resources teams.

To help you to identify the risk issues most relevant to your business, here are the five key questions we typically raise with companies’ senior management teams.

Are all of the sponsorship obligations understood?

Board appointments are a notifiable event. Who is responsible for making these notifications at your company? Is there a reporting line in place between the company secretariat and the responsible team to ensure that notifications are made within the prescribed 10 day period?

DIAC has the right to issue a notice to produce documents. Is your general counsel aware of this right? Who will receive the notice? Will they know how to respond? Will the general counsel even know if a notice is served?

Many organisations allow their sponsorship to be used by their associated entities. Do your entities have adequate reporting and communication protocols? The sponsoring company (you), not the employing company (the associated entity), is responsible for ensuring the sponsorship obligations are met – general counsel typically want to know when the company is assuming liability for the actions of another.

Are you managing your wider employee population?

Immigration compliance is not limited to subclass 457 visa holders. Companies must ensure that all employees hold valid work rights.

Does your company have a process in place to regularly check work rights? Where do you record the results of these checks? Do your recruitment teams and line managers understand the limitations of the various work conditions? Is the responsibility for checking, updating and recording work right checks clearly allocated? Do you audit your processes to ensure they are working?

Is your general counsel aware of the company’s potential liabilities?

Clearly, non-compliance with sponsorship obligations and legal requirements to check work rights can have significant consequences for a business.

DIAC can issue administrative infringement notices to non-compliant employers as an alternative to pursuing court proceedings. Civil penalty orders can also be issued, and higher penalties could apply for criminal offences. In addition, your business sponsorship can be suspended, cancelled or not renewed if you do not comply with your obligations.

Has your business considered the impact if the worst was to happen?

Has your board of directors been briefed on their potential liability?

From 1 July 2013, company executives (including directors, partners, company secretaries and officers of unincorporated associations) can be liable where civil or criminal offences are committed. Are your board members aware of their potential personal liability? Are they satisfied that appropriate processes are in place to check work rights?

Are your employment contracts up to date?

Employment contracts need to contain clauses to manage immigration obligations for all employees, not just subclass 457 visa holders. Therefore, your contracts must contain a clause requiring foreign national employees to tell you about any change in their visa status. Have your contracts been reviewed recently?

Where to from here?

Your company needs to ensure it has sound, practical policies, including regular education and training, to encourage and optimise immigration compliance. It is vital to reinforce the need to check work rights, and to remind all staff about potential exposures to the business.

Fragomen can help your company to meet these requirements. We offer a range of assistance, including conducting briefing sessions for key managers and business units, assisting to prepare board papers, attending board meetings or meeting with your general counsel and risk teams, reviewing employment contracts, policies and procedures, and a range of education and training solutions. Speak to your Fragomen representative today about how you can benefit from our tailored assistance.

For more information please contact:

 

 

 

 

Kim Adey

 

Corporate Counsel

 

T: +61 3 9613 9336 

 

E: kadey@fragomen.com

  www.fragomen.com