Every employer must verify that the person it intends to hire is authorized to work in the United States, regardless of their nationality or whether the person is a citizen or noncitizen. To do this, effective November 6, 1986, every new employee must complete the Form I-9. Section 1 of the I-9 form must be completed before or on the first day of employment, while Section 2 must be completed within three days of hire. The Form I-9 is regularly updated (the latest update is dated October 21, 2019, and has an expiration date of October 31, 2022). Employers should confirm they are completing the most recent form available for each new hire.
The current I-9 form and instructions may be accessed from the website of the U.S. Citizenship and Immigration Services at:
Employers cannot specify which documents the new employee should present from the list of acceptable documents. Employees can present any List A document, which are sufficient to establish both identity and employment eligibility. Alternatively, a new employee may submit a combination of List B and List C documents. List B documents establish identity and List C documents are sufficient to establish employment eligibility. If the employee cannot present the required documents, the employee must present an acceptable receipt. Acceptable receipts must be presented within the three-day period and valid replacement documents within 90 days. There are three types of acceptable receipts:
Receipts showing that a person has applied for an initial grant of employment authorization or for renewal of employment authorization, are not acceptable.
Employees must present original, unexpired documents. Employers may, but are not required to, photocopy the documents presented. However, if photocopies are made, they must be made for all new hires and they should be attached to the completed I-9 form. There must be a uniform system in place. I-9 forms must be kept for at least three years from the date of hire and for one year from the date employment terminates. Under present regulations, the retention rules do not apply to photocopies of the presented documents.
An employer must accept the documents that are presented by the employee if the documents reasonably appear to be genuine on their face and relate to the person presenting them. The employer is not expected to be an expert at authenticating documents. However, if the documents do not appear genuine, the employer should not accept them and should, instead, ask for alternative documents without specifying which ones.
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. Thus, it is important to have a calendar system in place. The employer does not need to reverify U.S. passports and I-551 (Permanent Resident or Resident Immigrant) cards. Section 3 is used for updating and reverification, and employers also have the option of completing a new I-9 instead of Section 3.
If an employer does not complete and retain the form properly, the employer may face civil money penalties and possibly criminal penalties as well. If the employer is a federal contractor, it may face debarment for substantial non-compliance.
Third or Subsequent Offense
Knowingly hired or recruited an unauthorized alien
$583-$4,667 per employee
$4,667-$11,665 per employee
$6,999-$23,331 per employee
Failure to comply with I-9 verification requirements
$234-$2,332 per form
Committing or participating in document fraud
$481-$3,855 per document
$3,855-$9,639 per document
Committing document abuse
$189-$1,880 per violation
Discrimination against an employment-authorized individual
$481-$3,855 per violation
$3,855-$9,639 per violation
$5,640-$18,739 per violation
Failing to notify DHS of a Final Nonconfirmation
$793-$1,585 per violation
Requiring a bond or security against liability arising under the employment verification requirements
$2,275 for each bond paid to the employer; also refund full amount of bond. If the individual cannot be found, this refund will go to the U.S. Department of Treasury.
The government must give three days’ notice in writing before inspecting an employer's I-9 forms. You should use this time wisely to ensure that your forms are correctly completed and that you have all the required forms. As a general rule, you should politely insist upon your right to advance notice of an audit and you should not waive your rights by agreeing to a more limited inspection immediately.
It is recommended all Form I-9’s be kept separately in binders, alphabetically, and when inspected, the binders be placed in a conference room for review. All Form I-9's for terminated employees within the retention period (one year from the date of termination) should be kept in a separate binder from active employee forms. The goal is to comply but segregate the documents and the inspector from the rest of the files and employees to minimize the flow of information.
Representatives of U.S. Immigration and Customs Enforcement (ICE) may visit workplaces to conduct routine audits of Form I-9s, as part of a raid or to detain specific people. Evidence of noncompliance can result in civil and criminal penalties to the employer and the potential loss of undocumented workers who may face deportation proceedings. Employers are advised to consult with an experienced immigration attorney well in advance and prepare a plan for either eventuality.
Employers should routinely audit their own I-9 records to be sure they have been prepared for all employees and have been completed properly. Employers have the right to insist on three working days' advance written notice before being required to produce their I-9 forms for inspection. If ICE finds that some employees are not authorized to work, the employer will be given 10 days to provide a valid work authorization for the employees. If the documents cannot be produced in that time, the employer will need to terminate the individual’s employment.
ICE agents can go to a workplace without warning and seek entry to the premises. In the process, they may seek to question or detain employees. There is little that an employer can do to prevent ICE agents from entering the public areas of a business such as a parking lot, lobby or publicly accessible restaurant. However, an employer does not have to allow immigration agents to enter private areas of the business without a judicial warrant. An administrative warrant on the letterhead of the Department of Homeland Security is not the same thing, so an employer may lawfully restrict access to private areas of the business unless the warrant has been issued by a U.S. District Court or a state court judge.
In the absence of a warrant, ICE agents need permission to enter private areas. Therefore, an employer should establish a policy and train its supervisors in advance to identify what are the private areas and what should be said to immigration agents. Supervisors and employees should be told not to panic and attempt to run away. Such behavior may provide ICE agents with a legal reason to arrest them. Employers have no obligation to answer questions of the ICE agents. Even if an agent shows an administrative warrant with an employee’s name on it, the employer does not have to say if the employee is working that day. Nor does the employer have to take the agent to the employee. Employers also have the right to videotape the ICE agents.
Employees have no obligation to show any identification to an ICE agent or to answer any questions. They may remain silent and ask for an attorney. In addition, an employer may remind the employees of these rights. ICE agents do have the right to arrest employees, and an employer should not take any action to impede them from doing so.
U.S. employers may sponsor foreign employees for certain temporary visa categories that authorize employment in the United States.
The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. The H-1B visa classification permits a foreign national to work in the United States for a temporary period in a “specialty occupation.” A person may hold H1B status for a maximum of six years, and it may be issued in increments of up to three years by the USCIS. An employee may receive extensions of H1B status beyond six years in certain circumstances, if the individual is in the process of applying for employment-based permanent residence. 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 that have been established. 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.
H1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these visas are restricted to individuals who have received master’s degrees or higher from U.S colleges or universities). This limitation is referred to as the H1B cap.
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 the individual's 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, the individual can begin working for a new H-1B employer as soon as the new employer’s petition is filed without having to wait for an approval.
H-1B visa requirements:
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 Access File ((PAF), and also called a “public examination file” is a file that needs to be maintained by any U. S. employer hiring people in H-1B, H-1B1 or E-3 temporary nonimmigrant worker statuses. It is intended to include more background information related to the attestations made on the Labor Condition Application used for the Form I-129 and/or visa application that was used to acquire the nonimmigrant worker status. The file may be requested by any member of the public through telephone or email inquiries. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning or taking photographs.
The INA and corresponding H-1B regulations require a petitioner using the H-1B program to notify all affected workers of its intent to petition for H-1B workers. This requirement, which is commonly referred to as the “notice or posting” requirement, informs U.S. workers of the terms of the employment of H-1B workers as specified on the LCA. It also informs U.S. workers of their right to examine certain documents and their ability to file complaints if they believe that violations have occurred. Affected workers are those at the same place of employment and in the same occupational classification in which the H-1B workers will be or are employed. Affected workers need not be employed by the H-1B petitioner to qualify as such: The H-1B petitioner’s notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third-party company.
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.
Currently, to qualify for an H-1B visa, a company must be willing to pay a qualifying worker a minimum salary of $60,000 annually. Under the Trump Administration’s proposed regulations, companies would be required to pay a minimum of $130,000 annually. The U.S. decision came via a Department of Labor (DOL) Interim Final Rule (IFR) that mandated that minimum wages to be paid to H-1B workers be higher by 40% on average.
In October 2020, DHS issued the Strengthening of the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of "Specialty Occupation" and the DOL issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and LCAs to incorporate changes to the computation of prevailing wage levels. Together, these rules upend decades of requirements for the H-1B program.
On November 2, 2020, USCIS published another proposed rule entitled Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions that dramatically alters the way in which H-1B registrations are selected for the annual H-1B statutory cap, as established by Congress. The proposed rule seeks to replace the current random selection process with a new wage-based selection process that would prioritize the selection of H-1B registrations based on employers who pay the highest wages.
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-1B status, such as engineers, accountants and professors. One advantage of TN status is that the application procedure is very simple. A Canadian applicant can apply at the border by presenting all of the following:
The “application” is adjudicated on-the-spot and, if approved, the worker is given a multiple-entry TN status good for three years.
A Mexican national must present the same information at a U.S. Consulate in Mexico.
Although TN status can theoretically be renewed indefinitely in three-year increments by filing a petition or by reapplying at the border, in practice the status may be limited because the treaty states that TN status cannot be granted to a worker who intends to reside in the United States permanently. Dependents of TN workers can get TD (Treaty Dependent) status but cannot use that status to work in the United States. To the extent NAFTA may be renegotiated under the current administration, employers with workers using a TN status should keep apprised of any changes that may impact those employees.
On September 30, 2018 Canada, Mexico and the United States agreed on a new North American free trade agreement. The new trade agreement, named the United States-Mexico-Canada Agreement (USMCA), did not make any changes related to “TN” visas for professional workers. Canada had wanted the list of eligible occupations expanded, while the U.S. had wanted it reduced; they settled on leaving it the same.
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 and operations. 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 or team leaders are not eligible for L-1A status.
Similar to H-1B's, L-1 visa applicants seeking intracompany transfers have always been subject to high scrutiny, but recent shifts at immigration agencies have imposed an even bigger evidentiary burden on petitioners. Denial rates for L-1 visas have been consistently high over the past three fiscal years, ranging from 24% to 29%, according to data from U.S. Citizenship and Immigration Services (USCIS).
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 U.S. person 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 person 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 if a change in status was done.
L-1A status is initially granted for three years and extensions are available for up to seven years. L-1B status maxes out at five years. In the past few years, L-1B visas have been difficult to get, especially for positions in the software field, because USCIS has raised the standards for specialized knowledge. Dependents of L-1 transferees obtain L-2 status. Unlike most temporary visa categories, which do not allow dependents to work, L-2 spouses may obtain employment authorization by applying for a work permit.
Some multinational 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 by applying 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 in the United States. 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, this includes persons or companies. The person seeking E visa status must also be a citizen of the treaty country.
E-1 visa applicants must be engaged in activities supporting a substantial volume of international trade in goods or services. E-2 visa applicants 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 visa holder and family members.
Most E visa applicants apply for the visa status directly at the U.S. embassy or consulate in the treaty country, but it is possible to change to E status from the United States. People admitted in E status are granted two years of authorized stay as 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 holders acquire E-2 status. E-2 spouses may obtain employment authorization. An E-2 visa holder may transfer the E-2 visa from one investment to another, but the new investment must be approved by USCIA or the US Consulate as being a qualifying one for E status.
The H-2A visa is for seasonal agricultural workers, and the H-2B visa is for nonagricultural 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 the Department of Labor (DOL) that no one is 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 prior to conclusion of the fiscal year.
A U.S. employer may sponsor a person for H-3 status to provide him or her training that is not available in the person’s native country. The trainee is not to engage in productive work other than as necessary to provide effective training. H-3 trainees 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 and classroom training, address why the training is not available in the trainee’s native country, and explain how the training experience will enhance the applicant’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.
After the first academic year, F-1 students may engage in three types of off-campus employment:
F-1 students may engage in practical training employment related to their degree program. While enrolled, F-1 students may use curricular practical training (CPT). 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.
If the student has earned a degree in certain STEM fields, the student may apply for a 24-month extension of a post-completion OPT employment authorization if the student:
Any off-campus training employment must be related to the F-1 student’s area of study and must be authorized prior to starting any work by the Designated School Official – the person authorized to maintain the Student and Exchange Visitor Information System (SEVIS) and USCIS.
If the F-1 student transfers to another school or begins studies at another educational level (for example, the F-1 completed a bachelor’s degree and is starting a master’s program), the F-1 student’s authorization to engage in OPT employment will automatically terminate. SEVP will inform USCIS of the termination date, and USCIS will terminate the F-1’s EAD accordingly.
Although the F-1’s authorization to engage in optional practical training will end, as long as the F-1 complies with all requirements for maintaining the student status, the F-1 status will not be affected by USCIS terminating the F-1’s EAD. Maintaining the student status includes not working on a terminated EAD, as the termination means that the F-1 student is no longer authorized to work in the United States using that OPT EAD. Working in the United States without authorization has serious consequences, including removal from the country and reentry bans. Also, remaining in the United States in violation of the F-1 student’s lawful nonimmigrant status could lead to an accrual of unlawful presence.
Those 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 which must be satisfied before the person is eligible for H, L, or permanent resident status. This obligation arises if the exchange visitor’s trip is funded by the person’s government or the U.S. government, if the person’s skills are in short supply in the individual's country or if the person is coming to the United States to obtain graduate medical education. If the person is subject to the two-year residence requirement, so too are all of the person's dependents. The J-1 passport visa will indicate if the two-year home return is required. 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 person must demonstrate sustained national or international acclaim. The U.S. employer must show that the person will fill a position that requires a person of extraordinary ability. The petitioning employer must also submit a peer review evaluation confirming the person’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. Those seeking this category must demonstrate substantial achievement in their field. This status also requires a peer review evaluation confirming the person’s international renown. P-1 status is for principal workers; 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 that lead to gaining permanent residence:
Each type of sponsorship has several categories and different procedures.
Those 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 person will be granted a conditional permanent residence and the couple must file a joint petition to remove conditions on residence two years after the person 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 spouses and children of permanent residents, married/unmarried sons and daughters 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 a “PERM” or a “labor certification,” i.e., a certification from DOL that there are no U.S. workers qualified and available to fill the position for which the worker is sponsored.
Employment-based Category 1 is for Priority Workers, which includes Nobel laureates, college/university teachers/researchers, and intracompany transferee managers/executives. A labor certification is not required for this category.
Employment-based Category 2 is for persons with advanced degrees and those with exceptional ability in the arts, sciences, education, athletics, or business. A labor certification is usually required for this category unless the person’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. A labor certification is always required for this category.
Employment-based Category 4 is for religious workers. Employment-based Category 5 is for investors committing a minimum of $900,000 in a high-unemployment or rural area, considered a targeted employment area, or $1.8 million to the U.S. economy.
Once a labor certification is obtained, the employer files a permanent residence petition with USCIS. The worker and dependent family members may concurrently file for adjustment of status. If the worker has worked without authorization or failed to maintain lawful status at all times, or if a visa is not immediately available (and the work has no other valid visa status), the person must complete the permanent residence procedure through consular processing at the U.S. embassy or consulate in the person's native country.
The lawful resident verification information is the documentation that is required by the United States when completing the federal Form I-9.
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