The Immigration Reform and Control Act (IRCA) requires employers to employ only those persons authorized to work in this country. Employers are required to verify the identity and employment eligibility of all individuals hired after November 6, 1986, regardless of how many people the company employs. Verification of identity and employment eligibility is accomplished by completing Form I-9. An employer should be careful not to engage in document abuse discrimination in this process by specifying what documents the employee presents, requiring more documents than are minimally necessary or rejecting documents that reasonably appear to be genuine.
Employers should keep I-9 forms for at least three years from the date of hire and for one year from the date employment terminates. Once an employer is certain they have met both tests, the forms should be thrown away. An employer is allowed to make photocopies of the documents presented by the employee, but they must still complete the form also. Under present regulations, the retention rules do not apply to photocopies.
If the employee presents a work authorization document with an expiration date, the employer must reverify employment eligibility before that document expires. Reverification is accomplished by examining a new document and completing Section 3 of the I-9 form. Employers do not need to reverify U.S. passports and I-551 (Permanent Resident or Resident Immigrant) cards.
If the employee cannot present an original document for employment eligibility, an employer may accept a receipt for a replacement employment eligibility document. The receipt will allow employment for 90 days from the date of the receipt or the date the prior employment authorization expired, whichever is later. Remember that the employer will need to reverify employment eligibility at the end of the 90-day “grace” period.
Note: Employers cannot accept receipts if the employment will last three days or less.
The government must give three-days’ notice in writing before inspecting I-9 forms. Employers should use this time wisely to ensure that their forms are correctly completed and that they have all the forms that should be retained. As a general rule, employers should politely insist upon their right to advance notice of an audit and should not waive their rights by agreeing to an inspection of only a handful of forms immediately.
As of September 14, 2007, Immigration and Customs Enforcement (ICE) has changed the regulations relating to the unlawful hiring or continued employment of unauthorized immigrants. The amended regulations apply to the employment verification process and impose new obligations on employers when an employer either:
The new regulation has been criticized by some as a back-door way for the federal government to address the nation’s growing illegal immigration population in the wake of repeated failures by Congress to pass a comprehensive immigration reform bill.
Under the new regulation, employers have a heightened duty to follow up on no-match letters and other employment verification discrepancies. The Department of Homeland Security takes the position that a no-match letter is a distinct indication that the subject employee is not authorized to work in the United States. The regulation creates an expansive definition of the term “constructive knowledge” as applied to an employer’s information about an individual’s authorization to work in the United States under the Immigration and Nationality Act.
An employer may violate federal regulations if it has knowledge that an employee is an unauthorized worker. An employer is deemed to have knowledge if a reasonable person would infer from the facts that the employee is unauthorized. Constructive knowledge can be found where one of the following is true:
Examples of an employer’s constructive knowledge that an employee may be unauthorized to work include:
The amended regulation also describes “safe harbor” procedures that the employer can follow in response to such a letter and thereby be certain that the Department of Homeland Security will not use the letter as part of an allegation that the employer had constructive knowledge that the employee referred to in the letter is an immigrant unauthorized to work within the United States. The “safe harbor” procedures include attempting to resolve the no-match issue and, if it cannot be resolved within a certain period of time, independently verifying the employee’s identity and employment authorization through a specialized process.
Immigration and Customs Enforcement considers employers to have acted reasonably if the employer resolves the discrepancy with the relevant agency within 30 days of receiving a no match letter by doing all of the following:
If the employer cannot resolve the discrepancy as described above, it must contact the employee and request confirmation that the employee’s information is correct. If the original information was correct, the employer must do all of the following:
If the employee who is the subject of a no-match letter maintains that the information he or she provided to the employer is correct, the employer must ask the employee to pursue the matter him or herself with the agency. Employers who take these corrective steps within 30 days of receiving a no-match letter are regarded as having acted reasonably and fall within the safe-harbor.
Likewise, many states have laws making it illegal for an employer to knowingly employ or refer for employment any individual who has illegally entered the United States.
U.S. employers may sponsor foreign employees for certain temporary visa categories that authorize employment in this country. Some of these categories include:
The H-1B visa is for professionals who will work in a “specialty occupation” on a temporary basis for no more than six years. The duration of stay is three years, extendable to six years. An exception to maximum length of stay applies in certain circumstances. A specialty occupation is one that requires:
There are numerous occupations that potentially qualify as specialty occupations. The employer must prove -- through objective evidence -- that the job offered falls within the statutory and regulatory definitions set forth. Typical occupations qualifying for H1B visa status include professions, which are defined by INA §101(a)(32) to include architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries. H-1B visas are employer and job specific.
Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000 with an additional 20,000 under the H-1B advanced degree exemption.
The H-1B1 (Chile and Singapore) program allows employers to temporarily employ foreign workers from Chile and Singapore in the United States on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore.
The H-1B petition process involves certification of a labor condition application (LCA) by the U.S. Department of Labor (DOL) and approval of an H-1B visa petition filed with the USCIS. Employers must submit an LCA to the DOL electronically through the FLAG system attesting to compliance with the requirements of H-1B or H-1B1. LCAs must not be submitted more than six months before the beginning date of the period of employment. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E. An employer must petition the administrator of OFLC for prior special permission to file an LCA by mail on the Form ETA-9035. After the employer’s H-1B petition is approved by USCIS, the individual worker can obtain an H-1B visa stamp by appointment at the U.S. consulate or embassy in his or her native country. If the individual is already in the United States, a change of status to H-1B is possible; and if the individual is already in H-1B status, he or she can begin working for a new H-1B employer as soon as the employer’s petition is filed without having to wait for an approval. The LCA verification process requires the employer to certify that the:
The employer must also document its compliance with the LCA verifications by retaining relevant documents and by making available a “public inspection” file upon request.
H-1B status is initially granted for no more than three years. Extensions are available, but the employee is subject to a maximum cumulative period of six years of H-1B status. H-1B extensions beyond the six-year limit are possible if the individual is the beneficiary of an employment-based permanent residence process that has been pending for more than one year or is the beneficiary of an approved immigrant petition and is unable to adjust status to permanent residence because of per-country limits.
The employer will be liable for the reasonable costs of the foreign national's return transportation if the employer terminates the foreign national before the end of the foreign national's period of authorized stay. The employer is not responsible for the costs of foreign national's return transportation if foreign national voluntarily resigns the position.
Under the North American Free Trade Agreement (NAFTA), citizens of Canada and Mexico who are qualified professionals can work in the United States using the Treaty NAFTA or TN, classification. This visa category is available for designated professional occupations set forth in an appendix to NAFTA. The list of professions includes many occupations that would also qualify for H-1 status, such as engineers, accountants and professors. One advantage of TN status is that the application procedure is very simple. An applicant can apply at the border by presenting all of the following:
The “application” is adjudicated on-the-spot and, if approved, the immigrant is given a multiple-entry TN status good for one year.
Although TN status can theoretically be renewed indefinitely in one-year increments by filing a petition or by reapplying at the border, in practice the status may be limited to five or six years of renewals because the treaty states that TN status cannot be granted to an immigrant who intends to reside in the United States permanently. Dependents of TN immigrants can get TD (Treaty Dependent) status but cannot use that status to work in this country.
The L-1A and L-1B visas are designed to facilitate the temporary transfer of managerial, executive and specialized knowledge personnel from overseas entities to related U.S. entities. L-1A status is for managers and executives and L-1B status is for persons with specialized knowledge of company methods, products, procedures, operations, etc. To qualify for L-1 status, the employee must have worked for the company abroad in a managerial, executive or specialized knowledge position for at least one full year during the three years prior to the transfer to a managerial, executive or specialized knowledge position with the related U.S. entity. First line supervisors are not eligible for L-1A status as managers unless the persons they supervise are professionals.
The U.S. employer must file a petition for L-1 status with the regional USCIS Service Center with jurisdiction over the location where the immigrant will work. Canadian transferees may submit the petition at the U.S.-Canada border for immediate adjudication. Once the employer’s petition is approved, the immigrant may obtain an L-1 visa stamp from the U.S. embassy or consulate abroad or if already in the United States, may commence the L-1 employment.
L-1 status is initially granted for three years and extensions are available for two-year periods. L-1A managers/executives are entitled to up to seven years of L-1 employment in the United States and L-1B specialized knowledge personnel are eligible for a maximum of five years of authorized stay. Dependents of L-1 transferees obtain L-2 status. Unlike most temporary visa categories that do not allow dependents to work, L-2 spouses may obtain employment authorization.
Some multi-national companies may qualify for “blanket” L-1 status. Typically, this is available for entities that transfer more than 10 people per year, have annual sales in excess of $25 million or more than 1,000 U.S. employees. Blanket L-1 status allows the U.S. entity to bypass the USCIS petition process in individual cases. Instead, the U.S. entity sends a special form to the transferee, who then applies for L-1 status directly at the U.S. consulate or embassy.
Based upon a bilateral investment treaty or a treaty of friendship, navigation and commerce between the United States and a foreign country, an individual may come to the United States to open and operate a foreign-owned business or be employed in a foreign-owned business that already exists here. Entities engaged in substantial trade between the United States and the treaty country will be able to transfer managers, executives and key personnel using the E-1 (Treaty Trader) visa status. Entities making a substantial investment in the United States may transfer managers, executives and key personnel using the E-2 (Treaty Investor) visa status.
The foreign entity must be a “citizen” or “native” of the treaty country. This means that at least a majority of the ownership of the foreign entity must be held by citizens of the treaty country. The person seeking E visa status must also be a citizen of the treaty country. There is no prior employment requirement, however.
E-1 immigrants must be engaged in activities supporting a substantial volume of international trade in goods or services. E-2 immigrants must be directing or developing an active and substantial investment of irrevocably committed funds devoted to production of goods or services. “Substantial” means more than enough to secure the success of the enterprise and more than enough to support the E immigrant and family members.
Most E immigrants apply for E visa status directly at the U.S. embassy or consulate in the treaty country, but it is possible to change to E status from within the United States Immigrants admitted in E status are granted two years of authorized stay so long as their E visa stamp is valid at the time of entry. Typically, E visas are valid for five years, but this may vary depending upon the terms of the treaty. In most cases, the E visa can be renewed for additional periods provided that the underlying trade or investment remains viable.
Dependents of E visa immigrants acquire the same status as the principal immigrant, such as E-1 or E-2 status. E-2 spouses may obtain employment authorization.
The H-2A visa is for seasonal agricultural workers and the H-2B visa is for non-agricultural temporary or seasonal workers. H-2 status is only available for jobs that are truly temporary in nature, so the status is almost always limited to one year. The employer must test the market for available U.S. workers and obtain a certification from DOL that none are available to fill the temporary position(s). The test of the market must offer prevailing wages and working conditions.
There is a quota or limit on the number of H-2B visas that can be issued each fiscal year. Often, the quota is exhausted well before the end of the fiscal year.
H-2A employers may be required to hire U.S. workers who apply for work anytime up to halfway through the certification period, even if that involves discharging the immigrant worker. Also, H-2A employers may need to pay special wages, offer housing and in some cases may have to pay transportation costs for the immigrant to come to the work site and return home.
Each H-2 period of authorized stay will be one year or less. After using three consecutive H-2 periods, the immigrant must remain outside the United States for at least six months before becoming eligible to use H-2 status again.
A U.S. employer may sponsor an immigrant for H-3 status to provide the immigrant training that is unavailable in the immigrant’s native country. The immigrant is not supposed to engage in productive training other than as necessary to provide effective training. H-3 immigrants cannot displace U.S. workers. The petitioning employer must supply extensive documentation of an appropriate training curriculum with the petition. The documentation must specifically discuss the amount of on-the-job vs. classroom training, address why the training is not available in the trainee’s native country and explain how the training experience will enhance the immigrant’s career prospects abroad. H-3 status is limited to the duration of the training program, which cannot exceed two years.
F-l visas are for students engaged in degree programs at U.S. academic institutions. There are several types of employment authorization available to F-l foreign students, including on-campus employment, off-campus employment due to severe economic hardship, international organization internships, curricular practical training and optional practical training before and after completion of studies.
An F-l student engaged in a full course of study may engage in part-time on-campus employment such as working in a cafeteria or bookstore so long as this employment does not displace a U.S. worker. This type of on-campus employment does not require advance permission from USCIS.
An F-l student may apply for employment authorization to work off-campus due to economic necessity or for an internship with an international organization. Economic necessity work permits are normally not granted except upon proof of a substantial and unforeseen change in the student’s finances.
F-1 students may also engage in practical training employment related to their degree program. While enrolled, F-1 students may use Curricular Practical Training. This may take the form of an internship, co-op, work-study program or some other activity that is an integral part of the degree program and CPT can be commenced upon an endorsement by the school’s foreign student advisor. A student who uses more than 12 months of CPT becomes ineligible for post-graduate Optional Practical Training (OPT).
OPT permits up to 12 months of on-the-job practical training upon completion of an academic degree program. F-1 students must apply for a work permit in order to use OPT and cannot commence employment until the permit is issued.
Dependents of F-1 immigrants are granted F-2 status and cannot work.
Immigrants participating in a designated exchange visitor program may engage in specific types of employment as part of their program activities. There are many types of J-1 exchange visitor programs, including those for students, practical trainees, teachers, professors, research assistants, specialists, camp counselors, au pairs and distinguished visitors. J-1 practical trainees are authorized up to 18 months of on-the-job training; other categories have different time limits.
Some exchange visitors are subject to a two-year home country residence requirement that must be satisfied before the immigrant is eligible for H, L or permanent resident status. This obligation arises if the immigrant’s exchange visit is funded by the immigrant’s government or the U.S. government, if the immigrant’s skills are in short supply in his or her country or if the immigrant is coming to the United States to obtain graduate medical education. If the immigrant is subject to the two-year residence requirement, so too are all of the immigrant’s dependents. It is sometimes possible to obtain a waiver of this requirement, but the waiver process is cumbersome and time-consuming.
The O category is for highly talented or acclaimed individuals who are scientists, educators, artists, athletes, entertainers or business people. To qualify for O visa status, the immigrant must demonstrate sustained national or international acclaim. The U.S. employer must show that the immigrant will fill a position that requires a person of extraordinary ability. The petitioning employer must also submit a peer review evaluation confirming the immigrant’s international renown and the need for such a person. Typically, O status will be granted for the duration of need but no more than three years.
P visa status is for performing artists, athletes and entertainers. Immigrants seeking this category must demonstrate substantial achievement in their field. This status also requires a peer review evaluation confirming the immigrant’s international renown. P-1 status is for principal immigrants; P-2 status is for essential supporting personnel; P-3 status is for coaches and trainers; and P-4 status is for dependents. Generally, P visa status will be granted for the duration of the engagement or season.
There are two major avenues to permanent residence:
Each type of sponsorship has several categories and different procedures.
Immigrants who marry U.S. citizens may be sponsored immediately for permanent residence and are not subject to category or per-country quotas. If the sponsor’s petition is filed within two years after the marriage, the immigrant will be granted a conditional permanent residence and the couple must file a joint petition to remove conditions on residence two years after the immigrant is granted conditional permanent residence. This requirement is intended to deter marriage fraud.
Almost all other family-based petitions are subject to category and per-country quotas and because of the high level of demand, it may take many years before a visa is available. There are family-based categories for unmarried sons and daughters of U.S. citizens, spouses and children of permanent residents, married sons and daughters of U.S. citizens and brothers and sisters of U.S. citizens.
Employment-based permanent residence also has several categories. Each has different requirements. For some categories, the employer must obtain “labor certification,” such as a certification from DOL that there are no U.S. workers qualified and available to fill the position for which the immigrant is sponsored.
Employment-based Category 1 is for Priority Workers, which includes Nobel laureates, college/university teachers/researchers and intracompany transferee managers/executives. Labor certification is not required for this category.
Employment-based Category 2 is for immigrants with advanced degrees and immigrants with exceptional ability in the arts, sciences, education, athletics or business. Labor certification is usually required for this category unless the immigrant’s employment will directly serve important U.S. interests.
Employment-based Category 3 is the most common of the employment-based categories, as it is used by professionals without advanced degrees, skilled workers in jobs requiring at least two years of training or education and unskilled workers. Labor certification is always required for this category.
Employment-based Category 4 is for Religious Workers, but is little-used now because of a history of abuse. Similarly, employment-based Category 5, which is for investors committing more than $1.8 million to the U.S. economy, is also little-used because of a history of visa fraud.
Once labor certification is obtained, the employer files a permanent residence petition with CIS. The immigrant and dependent family members may concurrently file for adjustment of status. If the immigrant has worked without authorization or failed to maintain lawful status at all times or if a visa is not immediately available, the immigrant must complete the permanent residence procedure through consular processing at the U.S. embassy or consulate in his or her native country.
The lawful resident verification information is the documentation that is required by the United States when completing the federal Form I-9.
If an employer knowingly hires, recruits or refers an undocumented immigrant for employment and a state or local government agency has reason to believe that a violation has occurred, the agency is mandated by law to file a complaint, which triggers an automatic investigation by the commissioner. If the commissioner finds substantial evidence that an employer has knowingly violated the law with respect to hiring, recruiting or referring an undocumented immigrant for employment, the commissioner will conduct a contested case hearing. If the commissioner determines that there is clear and convincing evidence that an employer has violated the law and the violation occurred while the employer was acting within the parameters of the employer’s state issued license, the appropriate regulatory board or the local government will revoke, suspend or deny the employer’s license.
If employers do not complete and retain the I-9 form properly, they may face civil money penalties and possibly criminal penalties as well. Fines for I-9 problems and document abuse discrimination range from $234 to $2,332. Penalties for knowingly employing someone who lacks authorization to work range from $583 to $4,666 for a first offense, $4,667 to $11,663 for a second offense and $6,999 to $23,333 for a third offense. If a person is a federal contractor, they may face debarment for substantial noncompliance.
Following an employer’s first violation, the regulatory board or local government will suspend the employer’s license until the employer shows to the commissioner that the employer is no longer in violation of the law. The employer may make this showing by filing a sworn statement with the commissioner. If the employer commits a second violation within three years of the first violation, the employer’s license will be suspended for one year.
Policies and Forms
Chapter 03: Immigration