What Do California Public Employers Need
to Know About Immigration Law?Throughout
the summer, the debate about immigration reform and solutions
for illegal immigration has spilled over from Congress, out to
protests in the streets of cities across the country, and into
to our water-cooler and living room conversations. Now, more
than ever, California’s public employers need to be kept aware
of the ever-changing immigration laws affecting their
day-to-day operations.
Employment Authorization And Completion Of The Form I-9
Illegal immigration is mostly driven by the foreign desire to
come work in the United States. Therefore, in an effort to
reduce illegal immigration, federal agencies have increased
enforcement and audit activities to ensure American employers
are not employing unauthorized workers. Employers face
increased scrutiny regarding their compliance with the Form
I-9 requirement.
The Immigration Reform and Control Act (“IRCA”) of 1986 (8
U.S.C. § 1324a) requires employers, including public
employers, to verify and record each employee’s identity and
authorization to work in the United States. The Form I-9
articulates three straightforward lists of acceptable
documents that an employee may submit. “List A” documents are
sufficient by themselves to establish both identity and
employment eligibility and a new hire need only provide one
document from the list. Otherwise, a new hire must provide a
“List B” document establishing identity, and a “List C”
document establishing employment eligibility. An employer may
not hire, or continue to employ, an individual unless all of
the employment verification requirements of IRCA are met. (8
U.S.C. § 1324a(a); 8 C.F.R. §274a.2(c)(1).)
Completion of the Form I-9 should occur post-hiring and should
not be used to screen applicants. The Department of Homeland
Security (DHS, which includes the U.S. Citizenship and
Immigration Services, formerly known as the Immigration and
Naturalization Service, or INS) has created the Form I-9 for
employers to use in complying with the Act’s requirements.
Employers must:
- Have employees fill out their part of the
Form I-9 when they start to work;
- Check documents establishing each
employee’s identity and eligibility to
work (photocopies should be kept with the I-9);
- Complete the Form I-9;
- Retain the Form I-9 during employment, or
at least three years after the date
of hire or one year after termination, whichever is later;
and
- Present the Form I-9 for inspection to a
DHS or Department of Labor officer
upon three days’ advance notice.
The Form I-9 must be completed and retained
for all persons hired after November 6, 1986. The form must be
completed on the date of hire, i.e. the first day of paid
work. An employee cannot commence work until the Form I-9 is
completed. If the employee is unable to complete the form
within three days, the employment may be terminated. Form I-9
must be completed for persons who are employed to perform
labor or services in return for wages or other pay, but not
for independent contractors or employees provided by a
temporary placement agency.
If an employer discovers that a Form I-9 is not on file for a
current employee, the employer may request the employee to
complete sections 1 and 2 of the form immediately. If the
employee is unable to provide acceptable documentation, the
employer must terminate employment, or risk being subject to
penalties for knowingly continuing to employ an unauthorized
worker.
An employer may seek reverification of certain documents
presented for I-9 purposes if the documents which were
presented by an employee at hiring as proof of his or her work
authorization or identity expired. The employer must reverify
documents issued by the DHS,
other than a lawful permanent resident, or “green card.”
Employers should implement a
calendaring system to know when to reverify. An employer may
require the employee to
complete another Form I-9. However an employer cannot mandate
which documents the
employee presents to satisfy the Form I-9 requirements.
Notifying the employee of the reverification process well in
advance of the expiration date is good practice to allow the
employee to obtain the necessary documentation.
The IRCA prohibits employers with four or more employees from
discriminating against any person (other than an unauthorized
alien) in hiring, discharging or recruiting because of a
person’s national origin or citizenship status (encompassing
both citizens and lawfully admitted temporary and permanent
aliens). (8 U.S.C. § 1324b(a)(1).)
Employers may also be liable for “document abuse,” or
requesting more or different documents than are required on
the Form I-9 to verify employment eligibility and identity, or
rejecting reasonably genuine-looking documentation. (INA §
274B(a)(6); 8 U.S.C. § 1324b(a)(6).) For example, an employer
may not request that a new hire present his or her permanent
resident card, or “green card”, as proof of work authorization
where other Form I-9 documents are sufficient to establish
work authorization as well. The Office of Special Counsel for
Immigration Related Unfair Employment Practices (OSC)
investigates such discrimination allegations against
employers. (8 U.S.C. § 1324b(d).)
Copies of the I-9 should be retained in each employee’s
personnel file. Federal law does not require employers to copy
supporting documentation. However, should an employer do so,
the practice should be applied consistently for all employees
regardless of what documentation is
presented. It is suggested that, similar to medical files, the
original Form I-9 be kept separate
from the rest of the file, so that if the DHS or the
Department of Labor inspects them, the
inspection can be done without breaching the confidentiality
of other unrelated information in
the personnel file.
An employer found to have knowingly hired or continuing to
employ, or have constructive knowledge of employing an
unauthorized employee, may be subjected to an order to cease
and desist, as well as a civil fine. Employers who fail to
complete, retain and present for inspection the Form I-9 are
subject to civil fines of not less than $100 and not more than
$1,000 for each first-time violation. (8 U.S.C. §
1324a(e)(5).) Employers may also be subject to increased civil
liability and/or criminal liability for a “pattern” or
“practice” of violations. (8 U.S.C. § 1324a(f)(i).) The Social
Security Administration (“SSA”) frequently issues “no match”
letters to employers stating that an employee’s stated social
security number does not match with the SSA’s records. An
employer’s non-response to such letters may be deemed as the
employer’s constructive knowledge of knowingly employing an
authorized alien.
Employer Sponsored Visas, Including H-1B Temporary Workers
Generally, employers are not permitted to inquire or
discriminate as to an individual’s citizenship status in the
recruitment process. However, an employer is also not
obligated to sponsor or petition for an employee to attain a
variety of available work visas. In order to assess whether
sponsorship will be required at the pre-hire interview stage,
an employer may lawfully ask all applicants, “Should you
receive an offer of employment, would you be authorized to
work here,” or “Will you now or in the future require
sponsorship for employment visa status?” An employer may adopt
a policy whereby they choose not to sponsor any employment
visas, however the policy must be consistently applied to all
applicants.
If an employer chooses to sponsor a foreign applicant,
multiple factors should be considered before deciding on the
appropriate visa, including costs, type of position, terms of
employment, foreigner’s home country, length of visa, employer
obligations, availability of visas, and delays in processing
times. Common employer-sponsored visas include H-1B specialty
occupations, B- business visitors, J-1 cultural exchange
visitors, TN- NAFTA professionals from Canada and Mexico, L-
intracompany transfers, and E- trader/investors.
Many public employers hire and sponsor workers in H-1B visa
status, which provides temporary work authorization in
specialty occupations. The H-1B visa status is available for a
maximum period of six years, in three year increments. Certain
circumstances allow for extension of the six year period. The
process of attaining an H-1B approved petition includes
obtaining an approved Labor Condition Application (“LCA”) with
the Department of Labor, which mainly contains terms and
conditions of the position. Employers should ensure all the
information on the LCA is accurate, as federal agencies treat
the LCA as an employment contract for terms including, length
of employment, pay rate, and work location. Employers who fail
to abide by the terms listed on the LCA are vulnerable to
civil and criminal penalties imposed by the DHS or Department
of Labor, including payment of back wages owed to the
employee.
Many employers have encountered difficulties sponsoring
individuals on the H-1B visa due to the annual numerical cap,
currently at 65,000 per fiscal year. For example, all 65,000
H-1B visas for fiscal year 2007 (October 2006 to September
2007) were used by May 26, 2006. Institutes of higher
education, government research institutions, and non-profit
organizations associated with either are exempt from the
numerical cap. In addition, the government allots an
additional 20,000 H-1B visas exempt from the cap for
individual’s holding a masters degree (although for fiscal
year 2007 this cap was reached on July 26, 2006). Generally, a
current H-1B visa recipient may change employers if: 1) there
is an available visa within the cap, 2) the individual
attained an H-1B which was initially subject to the cap, or 3)
the new employer is exempt from the cap.
Since the employment petitions are employer driven, all filing
fees for employer-sponsored visa petitions must be paid by the
employer. Generally, the filing fees associated with an H-1B
are $190 for the Form I-129 Petition for a Non-Immigrant
Worker, an H-1B Data Collection Fee of $750, or $1500 if the
employer has over 25 employees, and a $500 Fraud Prevention
and Detection Fee.
If an employer terminates the H-1B employee before the
petition is expired, the employer is responsible for payment
of the return fare back to the individual’s home country. (8
C.F.R. § 214.2(h)(4)(iii)(E).) An employer is also obligated
for pay of wages until the date the DHS is notified the
employment relationship has ceased. The terminated H-1B
employee is immediately out of status and unauthorized to work
or stay in the United States. (8 C.F.R. § 214.2(h)(11)(i)(A).)
Due to various numerical and occupational limitations
associated with employer-sponsored visas, employers should
consult with an immigration attorney and start the sponsorship
process well in advanced of the intended start date for the
employee in order to have the highest likelihood of
successfully petitioning and hiring a foreign worker.
Conclusion
This article provides a brief and general overview of a vast,
complex and constantly changing area of law. Legislation,
statutes, regulations and DHS publications are continually
issued. Therefore, before applying the advice contained in
this article, one should always consult an immigration
attorney to provide up-to-date specific advice to your
situation, and make you aware of any applicable exceptions to
the rules.
