There is no question that U.S. immigration laws are among the world's most complex. Indeed, U.S. immigration law frequently is compared to the U.S. tax code in terms of sophisticated intricacy. The Immigration and Nationality Act ("INA'') charges the Department of Homeland Security's U.S. Citizenship and Immigration Services ("USCIS"), U.S. Customs and Border Protection ("CBP"), and U.S. Immigration and Customs Enforcement ("ICE") divisions as well as the Departments of Labor, State, and Justice with sometimes overlapping and often-conflicting immigration responsibilities. These agencies are also involved in immigration enforcement rather than in the mere dispensing of immigration benefits.
Good corporate citizenship is essential in today's business world, and this includes scrupulous compliance with U.S. immigration law. Immigration law compliance can be especially daunting. Corporate compliance with both the letter and the spirit of America's complex immigration laws is essential to any corporation's credibility before the USCIS as well as the many U.S. consulates abroad. Immigration law compliance also helps corporations maintain a competitive advantage in the global marketplace. Like multinational corporations, good corporate citizenship knows no borders, and even more so as countries around the globe ratchet up greater levels of corporate scrutiny. Without a doubt, corporations that do not comply with the law are easy targets for substantial fines, criminal prosecution, and negative publicity.
The INA penalizes employers who hire or continue to employ unauthorized foreign workers. The law requires all U.S. employers to complete and maintain an Employer Verification Eligibility form, also known as a Form I-9, for each U.S. employee hired on or after November 6, 1986. Employers are subject to civil penalties for failing to properly complete l-9s for each employee. In other words, an employer may be fined for simply completing the form incorrectly or for employing a foreign national who works pursuant to an inappropriate or expired visa.
Full compliance with U.S. immigration law is also essential for foreign national employees. Significantly, an employee's willful and material misrepresentation on a visa application, or to an immigration official when applying for admission to the United States, can have dire consequences for the employee as well as for the employer. First, the foreign national can be barred for life from entering the U.S. unless a rarely granted waiver of inadmissibility is secured. The employee will be subjected to mandatory incarceration and perhaps immediate deportation. Should the employee successfully misrepresent himself or herself and gain unwarranted admission, his or her employer could face liability for employing someone with the unauthorized (and thus incorrect) visa status. Under some such circumstances, misrepresentations may also lead to criminal prosecution.
U.S. immigration law not only concerns the procedures by which foreign nationals may work and live in the United States, but also imposes on employers a number of recordkeeping and other compliance obligations related to the hiring, termination, and transfer of employees, for both U.S. and foreign nationals. The principal compliance-related obligations arise in the following areas: (a) verification of identity and employment eligibility through the Form I-9 process; (b) avoiding allegations of immigration-related unfair employment discrimination on the basis of citizenship or national origin; and (c) recordkeeping and notification requirements under the H-1B program.
Employment Eligibility Verification (Form I-9)
Employers need to verify the identity and employment eligibility of all employees hired after November 6, 1986, regardless of citizenship or nationality.
The following groups do not need an I-9: (a) current employees who were hired prior to November 6, 1986; (b) any workers providing services or employed outside the United States; (c) Independent Contractors, i.e., those who carry on independent businesses, contract to do a piece of work according to their own means and methods, and are subject to control only as to results; and (d) contractors supplied through a contracting agency. Caution: It is a violation of the law to hire an individual as a "Contractor" in order to avoid I-9 requirements. Be wary of employment candidates who request to be considered "consultants" or "independent contractors." Before deciding that a worker is a contractor and not subject to I-9 requirements, consult with our office.
Employment verification is performed by properly completing Form I-9. Form I-9 has two components: (a) employees must complete Section 1 of the I-9 on or before the employee's first day of work; (b) employers must complete Section 2 of the I-9 within three business days of the employee's start date (if the employee will work for fewer than three days, the entire I-9, including Section 2, must be completed on or before Day 1); (c) Section 2 requires that the employee present acceptable evidence of employment authorization and identity; (d) the I-9 permits the acceptance of either one document that shows both employment authorization and identity (List A), or one document each for identity and employment authorization (Lists B and C) (a list of acceptable documents is printed on the reverse side of the I-9); (e) employees are no longer required to provide their Social Security numbers, unless the employer participates in the Electronic Employment Eligibility Verification Program (E-Verify); (f) if the employee is unable to provide acceptable identity and work authorization documents at the time that Section 2 must be completed, the employee must be suspended or otherwise removed from the payroll; (g) the employer must physically examine the employee's original documents to ensure that they appear to be reasonably genuine on their face, and relate to the person presenting them (the employer must then complete Section 2 of the I-9); and (h) the employer is required to retain the I-9 for either the entire period of employment plus one year, or for three years from the date of hire, whichever is longer. The I-9 Retention Rule only comes into consideration when an employee terminates employment. While an individual is employed, the I-9 must be maintained.
Failure to comply with I-9 requirements may result in government-imposed audits and fines. In egregious cases, criminal penalties may apply. Even where employees are authorized to work, employers may be penalized for: (a) failure to complete the I-9; (b) untimely completion of the I-9; and/or (c) improper or inadequate completion of the I-9. The knowing and intentional employment, or knowing continued employment, of an unlawful worker is a separate offense for which civil and criminal penalties may be imposed. Employers may be penalized for suggesting, implicitly or explicitly, that employees present invalid identity or employment-authorization documents. Remember that employees transferred from foreign-related entities need to complete I-9 forms in order to be employed in the United States. Employers should maintain and store completed I-9s separate from personnel records. Electronic completion and storage is also allowed. Any I-9 that needs to be reverified due to the future expiration of employment authorization should be flagged for timely follow-up. An I-9 should be on file for every current or active employee hired since November 6, 1986. When an employee leaves, the I-9 should be removed from the "current" binder and placed chronologically in an "inactive" binder with notations of the individual's last date of work and the date on which the I-9 may be destroyed. Employers should destroy I-9s that they are no longer obligated to maintain. Keeping old forms could unnecessarily expose the employer to potential liability.
Unfair Immigration-Related Employment Discrimination
Employers are required to walk a fine line between avoiding employer sanctions for knowingly hiring someone who is unauthorized to work in the United States or for failing to comply with I-9 requirements and unlawfully discriminating in the employment process. The Immigration and Nationality Act ("INA") contains provisions that prohibit discrimination in hiring and firing on the basis of citizenship status or national origin. Under these provisions, employers must treat all qualified, eligible job applicants equally. Employers found to be engaged in discrimination may be required to pay fines and penalties, and to hire or rehire employees with back pay. Immigration-related employment discrimination laws require that employers: (a) treat all people the same in the application, interviewing, I-9, hiring, and firing processes; (b) except where required by law, not engage in "citizen only" hiring policies or requirements that applicants have a particular immigration status; (c) give the same job information and use the same application forms for all applicants; and (d) base hiring and firing decisions on job performance and/or behavior, not on appearance, name, language, or citizenship status.
Immigration Issues During the Hiring Process
Do not discuss ethnic or cultural background or immigration status during a job interview, even if prompted by curiosity.
Do advise a candidate that any employment offer will be conditioned upon the candidate's ability to present acceptable documentation showing identity and employment authorization within three business days of hire, and ensure all offer letters contain language to this effect.
Do try to avoid any discussion of immigration status or visa needs until a conditional offer of employment has been extended.
If the candidate raises an immigration-related issue, do ask whether the candidate will require a work visa in order to work for the company.
Do not promise that the company will secure a temporary visa for the candidate.
Do not promise that the company will pursue a green card for the candidate.
Do ensure that the same procedures are consistently used and that the same questions are asked with respect to employment eligibility verification for each and every candidate.
Once acceptable I-9 documents have been presented, do not request any additional immigration-related documents.
Do not require specific documents from the I-9 list. Do allow all candidates the full choice of acceptable documents.
Do not allow anyone to continue work if he or she cannot comply with the requirements of Section 2 of the I-9.
H-1B Public Access Files
Employers of H-1B workers are obligated to comply with the attestations made on the LCA filed with the DOL in connection with the filing of an H-1B petition. Employers are required to make certain documents related to the employment of H-1B workers available for public inspection. These documents constitute the Public Access File ("PAF"). The PAF should be created at the time of submission of the LCA to the DOL for certification. As explained above, the LCA is principally a set of attestations made by the employer, including that the hiring of an H-1B worker will not have a negative impact on the working conditions or wages of the employer's similarly employed U.S. workers. The PAF must be made available within one working day of the filing of the LCA with the DOL. It must be retained for one year beyond the last day of work of any employee covered by the LCA. There should be a separate PAF for each LCA pursuant to which the employer is employing H-1B workers. The PAF must include: (a) an original signed LCA; (b) the LCA cover pages from Form ETA-9035 (an employer may keep one master set of the LCA cover pages in a separate file); (c) signed posting notices with the dates and location of posting, or other required evidence that adequate notice has been given of the hiring of the H-1B worker (this is simply a notice, and not a job-opening announcement); (d) a copy of the prevailing wage determination for the position; (e) actual wage documentation showing how the wage set for the H-1B worker relates to the wages paid to similarly employed workers at the place of employment; (f) evidence that the H-1B worker is being paid at least the prevailing wage or the actual wage, whichever is higher; and (g) information relating to the benefit plan covering the H-1B worker, to show that the worker is receiving benefit parity with other similarly occupied workers.
Practical Tips: PAFs should be maintained separate and apart from I-9 records and personnel files. The LCA relates to a position for which H-1B workers are employed. It should not reflect the identity of the individual H-1B workers. Human Resources personnel may want to have a separate record that identifies the H-1B worker who is associated with a particular LCA but that should not be included in the PAF. For H-1B workers who travel frequently as part of their employment, i.e., roving employees, it may be necessary to have an LCA on file for each of the various worksites, depending upon the length of employment at the worksites.
Immigration Issues Arising During Termination
In general, employers are required to inform the USCIS of any material change in an employee's nonimmigrant status, including termination of employment. Termination of H-1B employees requires additional actions. Ensure that the termination of an H-1B employee is in writing as of a date certain to avoid allegations that the employee has merely been "benched without pay." The terminated H-1B employee must be offered return travel to his or her home country. This need only be offered where an H-1B employee is terminated or "RIF'd," but not where the employee voluntarily terminates employment. In addition, the return travel need only be offered to the H-1B holder, not to his or her family members. There is no requirement that there be payment in lieu of employer-provided travel. Termination of employment of foreign nationals who are in an employment-sponsored green card process will most likely lead the employee to initiate discussions regarding whether the green card process may be continued. All such questions should be referred to our office. Salary freezes or reductions in pay may have an impact upon the company's obligation to pay H-1B holders at least the higher of the actual or prevailing wage in the area of employment. Consult our office when such action is considered.
Technology Alert List (TAL)
Foreign nationals applying for U.S. nonimmigrant visas may encounter a visa processing delay of several weeks, or even months, because of security checks performed by the U.S. government. For example, if the visa applicant has ever been fingerprinted for any reason, or if his or her name and/or date of birth is similar to someone the U.S. government considers to be a security risk, it is possible that the U.S. government will perform a security background check. Sometimes these checks are conducted on a random basis as well.
Finally, some visa applicants may be subject to another type of security check related to their nationality and background. Before issuing a nonimmigrant visa to applicants from China, Israel, Pakistan, Russia, India, Iran, Sudan, Syria, North Korea, or Iraq, and other states at their discretion, U.S. Consulates are required to request a security advisory opinion ("SAO") from State Department headquarters if a visa applicant is engaged in or has a background in a high-technology field related to the Department of State's Technology Alert list ("TAL"). The TAL includes a long list of technologies that the State Department believes requires protection from foreign competitors and adversaries. In total, there are 16 categories on the TAL. As visa applicants from the specified countries are subject to a SAO if their education of work involves a "related field" to one of the 16 fields listed in the TAL, a high number of visa applicants may face substantial delays. Indeed, consular officers interpret these fields to encompass a wide range of activities, and they tend to err on the side of caution if it is unclear whether an individual is conducting research or working in a TAL-designated or related field. It is quite common for SAOs to require several weeks to be processed. Pleas for expeditious consideration are usually unsuccessful.
Tracking Expiration Dates
Employers should track I-94 expiration and employment authorization dates to the extent possible to ensure that key workers maintain their employment eligibility and do not incur status violations that might interrupt employment. Employers should have a separate I-9 reminder system in place for ensuring that Forms I-9 are reverified and updated as needed. Monitor I-94 and employment authorization expiration dates for all employees who are sponsored by the employer, both to ensure continued employment eligibility and to serve as a reminder for any needed I-9 reverification.
Encourage all employees who travel frequently to provide the employer with a copy of all new I-94s to monitor closely the expiration date on the I-94 to ensure that the I-94 was properly issued for the correct validity period.
More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.