Every year, hundreds of thousands of foreign nationals enter the U.S. to work or join family members. Individuals who enter the U.S. for employment include managers, executives, professionals, skilled workers, professors, researchers, seasonal workers, agricultural workers, and a host of others. Family members may enter the U.S. as the spouse or child of a U.S. Citizen or Permanent Resident. Siblings of U.S. Citizens may also obtain permission to live in the U.S. as permanent residents. Each foreign national who enters the U.S., whether based on employment or a family relationship, first must obtain authorization, usually in the form of a visa stamp in his or her passport. This booklet provides an overview of the various types of temporary employment visa categories currently available and also describes the various types of employment and family-based permanent resident options and processes.

U.S. employers are required to ensure that all employees, including foreign nationals and U.S. workers, are eligible to work in the U.S. under the Immigration Reform and Control Act of 1986 (IRCA). All employees hired after November 6, 1986 must complete a Form I-9 and produce documents verifying their identity and work authorization. The federal agencies charged with enforcing IRCA are stepping up efforts to ensure employer compliance. This booklet provides a summary of IRCA and E-Verify requirements.

In March 2003, the Immigration and Naturalization Service (INS) was reorganized and reformed under the Department of Homeland Security (DHS). The topics covered in this booklet fall within the jurisdiction of two DHS divisions: 1) the U.S. Citizen and Immigration Services (USCIS); and 2) Immigration and Customs Enforcement (ICE). USCIS is responsible for visa benefits and related services and ICE is responsible for enforcing immigration laws in the U.S., including IRCA requirements.

EMPLOYMENT VERIFICATION AND SANCTIONS

IRCA enlists U.S. employers in the federal government's efforts to enforce the nation's immigration laws. IRCA imposes several requirements upon employers, with violations punishable by civil fines and criminal sanctions. Specifically, IRCA makes it unlawful for you to:

  • knowingly hire or continue the employment of any person hired after November 6, 1986 who lacks authorization to work in the United States;
  • hire any person (after November 6, 1986) without verifying that individual's identity and employment eligibility;
  • discriminate in hiring and firing decisions on the basis of citizenship status (except under very narrow restrictions);
  • discriminate on the basis of national origin;
  • knowingly counterfeit or alter a document for the purpose of satisfying any immigration-related requirement; or
  • knowingly use or accept any false document for the purpose of satisfying any immigration-related requirement.

Reform legislation enacted in 1990 added new provisions to strengthen IRCA's prohibitions against discrimination. As a result, you cannot 1) require an employee to present more or different documents than are minimally required for the employment verification process; 2) refuse to honor documents presented by an employee that reasonably appear to be genuine and that relate to the person; or 3) specify which documents an employee must present to prove identity and/or employment eligibility. These prohibited practices are commonly known as "document abuse."

Employment eligibility verification is accomplished by completion of Form I-9, a form designated specifically for this purpose. The employee completes basic identifying information and attests to his or her immigration status in Section 1 before starting work. The employer must then examine the new hire's document(s) and certify in Section 2 within three business days after the employee's start date that the document(s) appear to: 1) be genuine; 2) relate to the individual in question; and 3) authorize the employee to work in the United States. Any document that contains an expiration date must be current and unexpired at the time that the I-9 form is completed.

The law requires that employees be allowed to select the documents they wish to present to verify identity and employment authorization. The documents presented must be on the List of Acceptable Documents and must be the originals. While you may photocopy documents presented by employees you are not required to do so. It is important to ensure that you are using the current version of the I-9 form and that you use the appropriate form for your location (e.g., the Spanish language version of the form is only for use in Puerto Rico and the CNMI version of the form is only for use in the Commonwealth of the Northern Marianas Islands).

The current version of the I-9 form (which includes the list of acceptable documents) is available on our website at www.laborlawyers.com and on the U.S. Citizenship and Immigration services (USCIS) website at www.uscis.gov. The employer is responsible for ensuring that the I-9 forms are completed in a timely manner, are completed properly, and that the forms are retained in accordance with IRCA requirements. Section 1 of I-9 form must be completed by by the employee no later than the date that employment starts. Section 2 must be completed by the employer representative no later than the third business day after the start date.

An I-9 form is required for each employee hired after November 6, 1986. Employees hired before that date are "grandfathered" and an I-9 form is not needed for these persons so long as the individual's employment is "continuing" in nature. For example, this means that authorized leaves of absence, brief interruptions in employment, transfers to other facilities, resumption of seasonal employment and similar situations do not generally trigger the verification requirement. True independent contractors are not subject to the I-9 form verification requirement. To reduce the risk of possible liability, however, you will often want to ensure that even your contract employees are lawfully working in this country.

When an employee's work authorization has an expiration date, you are required to "reverify" his or her employment authorization no later than the date that the prior work authorization expires. If the employee cannot provide you with proof of his or her authorization to work beyond that date, you may not continue to employ that person. In order to reverify an employee's work authorization, you may complete a new I-9 form or use Section 3 of the current version of the I-9 form. List B identity documents never need to be reverified, even if they have an expiration date. Likewise, Permanent Resident Cards and U.S. Passports and U.S. Passport Cards should not be reverified when they expire.

While an individual remains employed by your company, you must maintain an I-9 form for that employee in your files (unless he or she was hired before November 7, 1986). Once an employee is terminated, you must retain that employee's I-9 form in your files for: 1) three years from the date the employee originally started to work; and 2) one year after employment terminates. Once the later date of those two dates is reached, you can purge the I-9 form for the terminated employee.

Officials of the USCIS, ICE, and others have authority to conduct inspections of an employer's I-9 forms. Generally, an I-9 form inspection is initiated when ICE issues a Notice of Inspection (with or without a subpoena). In almost all cases, you are entitled to three days notice prior to the inspection – this is time you should use to review your forms and prepare for the inspection. If it is determined that you have substantive or technical errors on your I-9 forms that cannot be corrected (such as late completion errors), you may be assessed a fine of $110 to $1100 per I-9 form.

If it is determined that you knowingly hired or continued to employ individuals who were not authorized to work in the U.S. or discriminated on the basis of citizenship status or national origin, you may be ordered to pay fines ranging from $375 to $3200 per unauthorized worker for a first offense, from $3200 to $6500 per unauthorized worker for a second offense, and from $4300 to $16000 per unauthorized worker for subsequent offenses. Criminal penalties, including $3000 per employee and/or six months in prison, may be imposed against an employer convicted of engaging in a "pattern or practice" of knowingly hiring unauthorized workers in violation of the law.

The prohibitions against discrimination, including the document abuse provisions, are enforced by the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). OSC also has the power to inspect I-9 forms to ensure that an employer has not over-documented employees or specified which document an employee must present. OSC functions much like the Equal Employment Opportunity Commission (EEOC) in investigating and prosecuting alleged violations of IRCA's discrimination prohibitions. The penalties for IRCA discrimination violations may include backpay and other remedial measures in addition to the fines listed above.

E-Verify is a web-based system that allows employers to check the work authorization for newly hired, rehired, and, in some cases, existing employees. While use of E-Verify is voluntary for many employers, several states have passed laws requiring certain employers to use E-Verify. Additionally, some employers may be required by federal law to use E-Verify under a federal contract. For the most current list of state and federal rules regarding use of E-Verify, please visit the immigration compliance section of the Fisher & Phillips website, located at http://www.laborlawyers.com/I-9.

Once an employer has enrolled in the E-Verify program, which includes signing a Memorandum of Understanding to share data with the DHS and the Social Security Administration (SSA), the employer must start verifying all newly-hired or rehired employees through the system. E-Verify does not relieve an employer of the obligation to complete a Form I-9 for each newly hired employee; rather the system provides additional verification of the employee's authorization to work in the United States.

IMMIGRATION OPPORTUNITIES AND CATEGORIES

U.S. immigration law presumes that every foreign national entering the country intends to stay here permanently. Thus, most foreign nationals coming to the U.S. must demonstrate that they intend only a temporary visit. The law distinguishes between permanent residence (immigrant) visas and temporary (nonimmigrant) visas. Visas permit an individual to come to the U.S. border and seek entry in a particular status or classification. Each visa category has different eligibility requirements and benefits.

Visas are valid for varying lengths of time depending on the visa category and "reciprocity" rules with the foreign national's native country. Visa validity marks the period during which the foreign national may apply for admission to the United States. If admitted, the foreign national will be granted a period of authorized stay by means of an Arrival/Departure (Form I-94) card. The period of authorized stay does not always coincide with the visa validity period.

There are five broad categories of employment-based permanent residence and more than 20 different non-immigrant visa designations. A complete list of the current non-immigrant categories can be found in Appendix 1 at the end of this booklet. Some of the more common employment-related visa categories are explained below, followed by a discussion of the basics of permanent residence.

NON- IMMIGRANT WORK VISAS

Different types of non-immigrant (temporary) visas are issued for different purposes – travel, business, study, employment, etc. Specific documentation and evidence is necessary to meet the requirements of each different visa category.

Not all temporary visas authorize employment. It is therefore possible for a foreign national to be in the U.S. lawfully, but not be allowed to work. In addition, nearly all employment-related non-immigrant visas authorize employment only in a specific position and for a specific employer. Any other employment is prohibited. It is usually possible for the foreign national to change visa categories and/or employment upon USCIS approval of a visa petition filed by the foreign national or the employer. Generally, dependents (spouses and children under the age of 21) are authorized to accompany the principal foreign national to the U.S. Certain non-immigrant visa categories allow dependent spouses to apply for employment authorization.

A. B-1 Business Visitor

This visa category is commonly used by a foreign employer to send a foreign national to the U.S. to perform a brief assignment. The B-1 visa does not authorize employment by a U.S. employer. For example, this category is frequently used by salespeople to call upon U.S. customers, by managers or executives attending conventions or business meetings in the U.S., by technical personnel servicing equipment or goods sold to U.S. entities, etc. The key requirement is that the foreign national cannot receive payment from a U.S. employer for services rendered during a B-1 visit. The B-1 visa authorizes the foreign national to stay for the duration of the temporary assignment but no more than six months; an extension of stay beyond six months is possible but difficult to obtain.

Business visitors who are citizens or nationals from certain countries may be able to travel to the United States using the Visa Waiver Program (VWP). VWP allows eligible citizens or nationals from certain countries to travel to the United States for tourism or business and stay for 90 days or less without a visa. Individuals eligible to travel on the VWP may apply for a visa, if they prefer to travel using a visa. Not all countries participate in the VWP, and not all travelers from VWP countries are eligible to use the program.

The countries currently eligible for participation in the VWP program and information about qualifying for the VWP can be found on the U.S. State Department website at http://travel.state.gov.

Individuals wishing to travel using the VWP are required to obtain authorization prior to traveling from the DHS's Electronic System for Travel Authorization (ESTA) system. ESTA is a free, automated system used to determine whether an individual is eligible to travel to the U.S. under the VWP. ESTA was implemented to provide added security to the VWP. ESTA allows the DHS to determine whether an individual may travel using the VWP and whether the individual poses a security risk. ESTA applications may be completed online at https: //esta.cbp.dhs.gov any time before traveling. The ESTA system requires the traveler's biographical data including name, birth date, and passport.

Individuals wishing to travel to the United States on the VWP must also meet specific requirements regarding their passports. Individuals not meeting the requirements must either obtain a visa to enter the United States or obtain a new passport meeting the requirements.

B. E-1 Treaty Trader and E-2 Treaty Investor

The E visa category allows foreign nationals to enter the U.S. to manage a foreign entity's "substantial" trade or investment in the United States. This visa category is frequently used by multi-national companies to transfer managers, executives, and key personnel to U.S. operations. E visas require the existence of a friendship, navigation, and commerce or bilateral investment treaty between the U.S. and the foreign entity's country. The foreign national must be a citizen of the treaty country, and the foreign entity must be owned (or majority owned) by citizens of the treaty country. The E visa permits an initial period of authorized stay of two years, but E status can be renewed indefinitely so long as the requisite treaty relationship and qualifying trade/investment continue.

C. E-3 Australian Citizen Professional

The E-3 category allows Australian nationals to work in the U.S. in specialty occupations. Specialty occupations are those which are professional in nature and require at least a baccalaureate degree in a specific, relevant field. The foreign national must possess the relevant baccalaureate degree or the equivalent in education and working experience. E-3 visas are approved for a period of two years and are renewable indefinitely. A statutory quota system limits the number of new E-3 visas granted during each fiscal year.

D. H-1B Specialty Worker

The H-1B visa category allows a foreign national to fill a specialty "professional" position, i.e., one that requires at least a baccalaureate degree in a specific, relevant field. The foreign national must possess the relevant baccalaureate degree or the equivalent in education and working experience. The H-1B visa allows for an initial period of three years of authorized employment and a maximum period of six consecutive years of authorized employment (although the six year period may be extended under certain circumstances). The employer may be required to return the foreign national to his or her native country in the event that employment terminates during the validity period of the visa approval.

The employer must compile documentation and obtain approval of a Labor Condition Application (LCA) from the U.S. Department of Labor before submitting an H-1B petition to the USCIS. The LCA attestation requirements include, among other things, agreeing to pay the prevailing wage or the actual wage, whichever is higher, and agreeing to provide the foreign national the same benefits as those offered to U.S. workers.

H-1B visa holders may take advantage of a "portability" provision that allows them to begin working for a new employer once the new employer's H-1 petition is filed (rather than waiting several months for the petition to be approved). Of course, the new employer must comply with the attestation requirements and file a bona fide petition.

A statutory quota system limits the number of new H-1B visas granted during each fiscal year. Institutions of higher education, non-profit research organizations, and organizations affiliated with institutions of higher education generally are exempt from the annual quota. Extensions of H-1B status are also generally exempt.

E. H-1B1 Chile And Singapore Professionals

The H-1B1 category allows citizens of Chile and Singapore to work in the U.S. in specialty occupations requiring theoretical and practical application of a body of specialized knowledge and the attainment of a bachelor's degree or the equivalent in the specific specialty. Application of the H-1B1 visa can be made directly at the U.S. Consulate without prior approval from the USCIS. Admission is in one-year increments; indefinite extensions in one-year increments may be granted. An annual quota system limits the number of Chile H-1B1 visas to 1,400. Singapore H-1B1 visas are annually limited to 5,400.

F. H-2 Temporary Worker

There are two kinds of H-2 visas: H-2A visas for temporary agricultural workers and H-2B visas for other temporary workers. In both cases, the employer must demonstrate that the foreign national will only be needed for a temporary or seasonal period, i.e., the job itself must be temporary in nature. In addition, the employer must undertake an extensive documentation process to obtain a labor certification from the DOL. This process includes positive recruitment efforts intended to prove that U.S. workers are not available for the job in question. Generally, H-2 status is only valid for the period of the employer's temporary need. The underlying DOL certification will be valid for no more than one year and must be renewed if the temporary employment is to continue. H-2B visas are subject to a fiscal year quota limiting the number of visas issued each year.

G. H-3 Trainee

The H-3 category is for foreign nationals coming to the U.S. to receive training unavailable in their native country. The employer providing the training must document the existence and content of a formal training program, which may include some on-the-job training. The foreign national, however, cannot displace a U.S. worker and cannot work for the U.S. employer once the training program concludes.

H. J-1 Exchange Visitor

This visa category is a broad category used by students, visiting researchers, lecturers, business trainees, summer camp counselors, au pairs, and others. Business trainees may qualify for up to 18 months of on-the-job training or employment, except for trainees in the agricultural, hotel, and tourism fields which are generally limited to 12 months. The foreign national must be sponsored by an officially designated exchange visitor program sponsor, but employers can often coordinate sponsorship with an academic institution or "umbrella" program. Umbrella program sponsors work with employers to place exchange visitors for a fee.

The J-1 visa can subject the foreign national to a two year home country residence requirement if the foreign national's visit is funded by the native country or a U.S. government agency, if the foreign national's skills are in short supply in the native country, or if the J-1 foreign national is coming to the U.S. to receive graduate medical training. A foreign national subject to the two year residence rule must spend two full years in the native country or obtain a waiver of that requirement before being eligible for H-1, L-1, or permanent residence status.

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