I. IMMIGRATION REFORM AND CONTROL ACT AND THE I-9 FORM
In 1986, the Immigration Reform and Control Act (IRCA) was enacted. All employers must verify the employment eligibility of all individuals hired after November 6, 1986. Note that people hired prior to November 6, 1986, casual domestic employment in a private home and independent contractors are not covered by the IRCA’s definition of employee. Employers in the United States may not knowingly hire, recruit or continue to employ an alien not authorized to work in this country. The IRCA requires all employers to verify the immigration status of each covered employee and to ensure that the employee is either a United States citizen or an alien authorized to work.
In order to accomplish this, all employers must require all applicants and all employees to present documentation to show proof of their identity, employment eligibility and complete the required I-9 form. The Form I-9 and a new Handbook for Employers, designed to reflect the new rules applicable to Form I-9 compliance, can be downloaded by going to http://www.uscis.gov/ and searching for "Form I-9" and "Handbook for Employers."
A. General Information – Section 1
Section 1 of the I-9 must be completed when an employee begins work. This section asks for general biographical information (e.g., name and address) and is completed by the employee. It is at this time that the employee must present, to an employer, documentation showing identity and employment eligibility. This section also asks if the employee is a U.S. citizen or national, a Lawful Permanent Resident (LPR) or an alien authorized to work.
“Citizenship” is acquired at birth (born in the U.S. or born to parents, one or both of who are U.S. citizens). Most “Nationals” (people owing permanent allegiance the U.S.) are U.S. citizens. “Citizenship” is also acquired through the “Naturalization” process. Although all citizens must fill out an I-9, a naturalized citizen does not need to show any documentation beyond that of a person acquiring citizenship at birth.
An alien is any person who is not a U.S. citizen or national. Aliens are categorized as non-immigrants, immigrants and undocumented. A non-immigrant is someone who is in the U.S. on a temporary basis. There are several classes by which a non-immigrant may enter the country and each class has a separate visa designation [e.g., business visa (B-1), tourist visa (B-2), student visas (F-1 and J-1) and temporary worker visas (H-1 and L-1)]. While some visas authorize employment, others do not. Non-immigrants authorized to work will have a document authorizing work or will have authorization to work stamped on their passport.
Aliens legally in the U.S. and are not of non-immigrant status are considered immigrants. Immigrants have no specific time limit for remaining in the country and may stay until removed under the Immigration and Nationality Act. Most immigrants are LPRs or aliens lawfully admitted for permanent residence. Some immigrant classes, while allowed to remain indefinitely, are restricted from remaining permanently in the U.S.
Conditional permanent residents may stay in the U.S. for two years in that status, but during their stay, may request that such condition be removed. Immigrant or LPR status may be conferred upon immediate relatives (children under 21, spouses and parents of U.S. citizens), family-sponsored immigrants (family members other than immediate relatives), employment-based immigrants and diversity immigrants (people granted refugee and asylee status). All but immediate relatives are numerically restricted and because of this, some people have to wait for years before an immigrant visa is issued to them. Immigrants or LPRs are issued I-155 cards (commonly called “green cards”) to show their status and authorize them to work in the U.S.
“Undocumented aliens” are people who are unlawfully in the U.S. because they have not been inspected by the INS or they have stay beyond their restricted time. These aliens are not allowed to live or work in the U.S.
B. Acceptable Documents – Section 2
The employer must complete Section 2 within three days after hiring. An employer must review documents presented that establish the identity and employment eligibility of each new employee within these three business days and indicate such on the I-9. Acceptable documents are listed on the I-9.
Documents appearing on the List A side of the I-9 are sufficient, if produced by the employee, to establish both identity and employment eligibility and no further documentation is necessary.
Documents appearing on the List B side of the I-9, if produced by the employee, establish identity. The employee still must produce a document that establishes employment eligibility from List C.
The employer’s obligation regarding the examination of documentation is only to ensure that the documents submitted by the employee reasonably appear to be genuine. Attention should be given to any expiration dates and re-verification should occur before the expiration of any document.
C. Reverifying Employment Authorization for Current Employees
Whenever an employee’s work authorization expires, an employer must reverify his or her employment eligibility. Employers may use Section 3 of the Form I-9, or, if Section 3 has already been used for a previous reverification, use a new Form I-9. If an employer utilizes a new Form I-9, it should write the employee’s name in Section 1, complete Section 3, and retain the new Form I-9 with the original Form I-9. The employee must present a document that shows either an extension of the employee’s initial employment authorization or new work authorization. If the employee is unable to provide the employer with proof of current work authorization, the employer cannot continue to employee that person.
D. Record Retention
The completed form itself must be retained for at least three years or at least one year after the person’s employment has ended, whichever is later. The Forms I-9 can be retained in paper, microfilm, microfiche or electronically, or any combination thereof. To store Forms I-9 electronically, an employer may use any electronic recordkeeping, attestation, and retention system that complies with DHS standards, which includes most off-the-shelf computer programs and automated data processing systems. However, the system must not be subject to any agreement that would restrict access to and use of it by an agency of the United States. Although copies of the documents presented by the employee are not required, if they are made, they must be attached to the I-9 and retained for the requisite period. The Immigration and Naturalization Service (INS) is the enforcement agency for employment eligibility verification.
E. Anti-Discrimination
Employers are required to make a good faith effort to hire authorized employees, but it is considered an unfair employment practice to discriminate against an authorized person with respect to hiring, firing, recruiting or referring the person because of his or her national origin or a protected person’s citizenship status (protected person include U.S. citizens or nationals, some LPRs, some aliens temporarily admitted and refugees and asylees). An employer is prohibited from specifying what documents, from the I-9 lists, the employer wants to examine. An employer may not ask for more documents to be presented and may not infer that an employee is unauthorized because of a foreign appearance or accent. Documents tendered may not be refused by an employer if, on their face, they reasonably appear to be genuine and relate to the person who presented them.
In addition, the INS is empowered to enforce the anti-discrimination provisions of the law. Employers with three or more employees cannot discriminate in the hiring or promoting of foreign nationals because of national origin or discriminate against U.S. citizens or intended U.S. citizens based upon their citizenship status. The investigation and prosecution of discrimination claims are the responsibility of the U.S. Department of Justice.
II. EMPLOYMENT VISAS
The number of immigrants and amount of labor shortages in Nebraska continues to grow. As a result, more questions have been fielded as to how to identify appropriate work authorization visas. This portion of the article summarizes some of the most commonly issued employment visas that grant work authorization to eligible aliens.
Employment visas may be issued to foreign students, exchange students and eligible aliens. Such visas are categorized as either “temporary-non-immigrant” or “permanent-immigrant.” An employer may want to hire on a temporary basis (e.g., one month to three years) or on a more permanent basis (for an indefinite period). In such cases, there may be one or more visa categories available to grant work authorization.
A. Temporary (Non-immigrant) Visas
1. Foreign or Exchange Student Work Authorization – F and J Category Visas
Secondary or college level students with a full course of study (F-1 students) may work on campus without INS authorization and may work off-campus (e.g., as interns) is the INS finds and authorizes such work based on “severe economic hardship” after one academic year. If authorized by the school, students may obtain work authorization off-campus for up to 12 months in either a curricular or optional practical training program. Students who enter the U.S. in an accredited exchange visitor program (J-1 students) may work without INS authorization, if employment is part of the exchange program (i.e., employment with the exchange visitor program sponsor or “appropriate designee”).
2. Non-immigrants, Temporary Works or Trainees – H-1B, H-2B, O-1, 0-2, TN and B Category Visas
An H-1B non-immigrant visa grants temporary admission to the U.S. for aliens of distinguished merit and ability, limited to employees in specialty occupations (a “specialty occupation” requires theoretical and practical application of a body of highly specialized knowledge and at least a bachelor’s degree in the specific specialty as a minimum for entry into the occupation). The H1-B Visa may last up to 6 years and the alien does not have to maintain a separate residence abroad during his or her temporary stay in the U.S. Employers must offer benefits to H1-B employees on the same basis as similarly employed U.S. employees. Before filing a H-1B Non-immigrant Visa Petition, an employer must file a “labor certification application” (LCA) with the U.S. Department of Labor (DOL) “certifying”
An H-2B non-immigrant visa (for lesser skilled workers) is available if:
Employers submitting H-2B petitions must consider available U.S. employees for the temporary services or labor to be performed and must offer terms and conditions of employment consistent with the nature of the occupation, the activity and industry in the U.S. H-2B workers may not displace United States workers capable of performing such services or labor or adversely affect the wages and working conditions of U.S. workers. Under the H-2B classification, temporary services or labor is any job which the petitioner states is necessary for him or her to perform temporarily, regardless of whether the underlying job may be described as permanent or temporary. As a general rule, the period the petitioner is needed must be one year or less, but in extraordinary circumstances may be longer. An Alien Labor Certification must be filed with the DOL within the area of intended employment. This certification, issued by the Secretary of Labor, demonstrates that qualified workers in the U.S. are not available and that the alien’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers. An approved H-2B petition is valid up to one year, but an employer may apply for extensions (in one-year increments for a maximum of three years) if the employer requires emergency temporary labor.
The O-1 visa non-immigrant visa (“extraordinary ability” visa) became available October 1, 1991, for foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics. The INS may grant it only after consultation with peer groups in the area of the foreign national’s ability, including labor organizations with expertise in the skill area of the applicant. To be eligible, a foreign national must have:
To be eligible for an O-2 non-immigrant visa, a foreign national:
TN non-immigrant visas are available to Mexican and Canadian citizens pursuant to the North American Free Trade Agreement (NAFTA), authorizing such citizens to work in a professional occupation in the U.S. if:
Occupations listed in Schedule 2 include accountants, engineers, registered nurses, architects, attorneys, university teachers and research assistants, hotel managers, librarians, systems analysts and management consultants. Work authorization is allowed for one year with unlimited annual extensions with the limitation that the duration of stay must continue to be temporary.
B-1 non-immigrant visas are for persons in the U.S. temporarily for business, including the following activities:
The visa is granted for a period necessary to conduct business, generally approved for three months or less. An extension may be given for no more than six months each time.
B. Permanent (Immigrant) Visas – “Green Cards”
Aliens that are able to attain permanent residency status are granted permanent immigrant visas or “green cards”. These types of visas allow foreign nationals to live and work in the U.S. without time limitations. There are five employment-based immigration classifications available.
1. Priority Workers
There are 3 subcategories of priority workers that are eligible for an EB-1 immigrant visa. The first consists of aliens with extraordinary abilities in science, art, education, business or athletics. An applicant must show documentation of national or international acclaim and recognition in his or her field of expertise. No labor certification or job offer is required if the applicant works in the field of their extraordinary ability. The second subcategory consists of outstanding professors and researchers who are recognized internationally and have at least three years of experience in teaching of research. Although no labor certification is required, the applicant must show a job offer and file a petition with the INS. The third subcategory consists of certain multinational executives and managers, employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary or branch of the U.S. employer. No labor certification is required, but the applicant must show a job offer and file a petition with the INS.
2. Advanced Degree or Exceptional Ability Aliens
To qualify for an EB-2 immigrant visa, the employee immigrant must be a member of a profession holding advanced degrees (or the equivalent) with five years progressive experience in the profession or have exceptional ability in sciences, arts, professions or business that will substantially benefit the national economy of the U.S. A job offer and labor certification are required but may be waived if a determination is made that it would be in the national interest to admit an applicant for lawful permanent residence.
3. Skilled Workers, Professionals and Other Workers
An EB-3 immigrant visa may be obtained by certain skilled, professional and other worker. “Skilled workers” are aliens capable of performing a job requiring two or more years of experience or training. “Professionals” are immigrants who hold baccalaureate degrees (e.g., bachelor’s degrees in engineering, computer science or economics) and are members of a profession. “Other workers” are immigrants petitioning for classification as unskilled labor that requires less than two years of training or experience.
4. Special Immigrants
This immigrant visa category includes special ministers and religious workers who were members of a qualifying religious organization for the immediate two years prior to entry in such status and worked in a particular vocation or occupation for those two years. They must seek to enter the U.S. to be a minister of religion; work for the religious organization in a professional capacity; or work for a bona fide religious organization affiliated with a religious denomination. The petitioning religious organization must qualify as a nonprofit organization. Other immigrant workers who may seek entry based on such status are overseas employees of the United States government, consulate, and embassy offices; former employees of the Panama Canal Company and their families; foreign medical graduates; and retired employees of international organizations and their family members.
5. Investors
A foreign investor may qualify for this employment-based preference category is he or she establishes a new commercial enterprise and invests between $500,000 and $1 million in the new enterprise. The new investment must create at least 10 full-time jobs for U.S. citizens, excluding the investor and immediate family members. Only $500,000 is required for investment in targeted high unemployment areas and there is no requirement that the investor employ ten U.S. workers if he or she can reasonably demonstrate that the investment created jobs indirectly and improved productivity for the targeted area.
6. Labor Certifications for EB-1 and EB-3
For EB-1 and EB-3 immigrant visas, labor certifications are required prior to the issuance of a permanent visa. An employer must submit the certification forms in duplicate, with original signatures, at the local employment security office in the geographical area where the alien is to be employed. Supporting documentation of the alien’s qualifications and the employer’s recruiting efforts must be included with the application. An alien’s wages must be the prevailing wage for that occupation and all job requirements must be reasonable and minimum. If the employer recruits, then recruitment efforts requires:
III. STATE STATUTORY LAW – EMPLOYER VERIFICATION REQUIREMENTS
Effective October 1, 2009, pursuant to the passage of LB 403, employers will be required to verify employment eligibility of all new employees for certain “public” employers and certain tax incentive programs.
The provisions of Neb.Rev.Stat. §§ 4-108 to 4-114 require that all public employers and all public contractors and/or their subcontractors verify the employment authorization of all new employees. A public contractor is defined as “any contractor or his or her subcontractor who is awarded a contract by a public employer for the physical performance of services within the State of Nebraska.” As a result, as a condition of contracting with a Nebraska public employer (an agency or political subdivision of the state), their contractors and subcontractors must verify the employment eligibility of all new employees physically providing services within the state, through a federal immigration verification (i.e., E-Verify System). Any contract between a contractor and a public employer must include a provision requiring the contractor to verify the employment eligibility of all new employees.
The new law also requires all employers that apply for tax incentives under certain tax incentive programs (Nebraska Advantage Act, Nebraska Advantage Rural Development Act, Nebraska Advantage Research and Development Act, or Nebraska Advantage Microenterprise Tax Credit Act) to verify the employment authorization of all new employees. For purposes of calculating any tax incentive to which an employer may be entitled, the Tax Commissioner will be required to exclude hours worked and compensation paid to an employee that is not eligible to work in Nebraska.
IV. FORM I-9 – ELECTRONIC STORAGE OF EMPLOYMENT ELIGIBILITY VERIFICATION
The US Department of Homeland Security, Immigration and Customs Enforcement (ICE) has approved the Electronic Signature and Storage of Form I-9, Employment Eligibility Verification. The final rule which became effective on August 23, 2010. The final rule which relates to the requirement for employers to verify the employment eligibility of all individuals hired after November 6, 1986, provides for the following: