In order to work legally in the U.S., the law requires companies to employ either U.S. citizens, or foreign nationals with the necessary employment authorization. While a diverse workforce has always strengthened the U.S. economy, the unusual opportunities for employment in the U.S. has also historically been the magnet that attracts unauthorized employment. Because of the numerous aspects of business immigration law and the multiple forms related to it, it is essential for your business to have a competent business immigration attorney to assist you when dealing with immigration-related employment issues. With our expertise in all areas of the immigration, and with our spread of offices throughout the U.S. and internationally, NPZ is able to offer incomparable service to business clients seeking compliance with federal immigration and nationality regulations. Let's take a look at various forms used in business immigration, each of which has a distinctive purpose. The purpose of Form I-9 is to verify the identity of individuals hired for employment in the United States and to validate their employment authorization. Every U.S. employer is required to ensure that these forms are completed by all new hires, including citizens and noncitizens. The employer, too, must complete the form. Form I-9 is designed to provide the following: - The employee's testament to his or her employment authorization
- The employee's presentation of appropriate documents demonstrating identity and employment authorization
- The employer's testament to having examined the original documents and reasonably verified their validity
The employer is required to retain Form I-9 for a designated period and keep it available for inspection by authorized government officials. E-Verify, has assisted the legal immigration process by allowing businesses to determine the eligibility of their employees to work in the United States. Internet-based, E-Verify is highly efficient, uncomplicated, and free for employers to use. It takes the process of validating an employee's legal status a step beyond the I-9 Form by comparing the information on the I-9 Form to recorded information available to various government agencies including, but not limited to, the U.S. Department of Homeland Security. Documents used to verify work authorization can include: - U.S. passport and visa information
- Immigration and naturalization records
- State-issued driver’s licenses and identity document information
- Social Security Administration records
At times, E-Verify also displays a photograph for the employer to compare to whatever photo the employee has submitted on personal ID documents. If E-Verify is able to match both sources of data, a notification of Employment Authorization will be issued promptly. On the other hand, if there is a discrepancy, a Tentative Nonconfirmation will result. Because E-Verify can only be used on new hires, U.S. Immigration and Customs Enforcement (ICE) periodically conducts audits on employers throughout the country in order to double-check credentials of new hires and to check on the status of past employees. In view of the possibility of I-9 audits, employers are required to retain I-9 forms for 3 years from the date of hire or for 1 year after the employment of a particular employee ends, whichever is later.
I-9 audits may be random, but are typically based on information ICE receives from tipsters, most often disgruntled employees, former employees, or business competitors. The procedure of an ICE audit can be a frightening one for employers, so it is best for employers and employees to be prepared. If ICE determines that an audit is necessary, the following will take place: - Notice of Inspection (NOI) will be mailed or hand-delivered to the employer or sometimes armed ICE agents will enter the workplace to serve the employers with the papers
- ICE agents will inspect payroll and other accounting records to obtain a complete list of employees
- Agents will check I-9 forms against Department of Homeland Security’s databases
- Notice of Suspect Documents (NOSD), listing suspected employees, may be given to employers
- The NOSD may also list employees who are unauthorized to work in the U.S.
Employers are notified that if these latter employees continue to work, the employer will be subject to fines and prosecution - ICE can process for removal (deportation) any workers found to be undocumented
The H-1B program has been developed for employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. A specialty occupation is considered to be one that requires highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The purpose of the H-1B provisions is to assist employers who are unable to find U.S. employees with the business skills and abilities they need. H-1B therefore authorizes the temporary employment of qualified individuals who would not otherwise be authorized to work in the United States.
Restrictions are put on H-1B visas to protect both American workers and the employees who are brought into this country with such authorization. For one thing, U.S. law requires employers to pay wages at least equal to wages paid to other workers with similar experience and qualifications. For another, workers hired on H-1B visas are only allowed to work in this country temporarily -- initially for 3 years with the possibility of a 3-year extension. Additional time beyond the 6 years may be authorized under AC-21. The Department of Labor has compiled and maintains a list of individuals and corporations that have been disqualified or debarred as a result of H-1B audits or investigations. Once employers have been singled out as violators of labor regulations, they are subject to random investigations by the Department of Labor for a period of up to 5 years.
Because of the strict regulations at play in the immigration arena of employment, wise employers make sure that they have experienced immigration attorneys to ensure that they are in compliance with U.S. law and to prepare them for eventualities by conducting internal audits. |