Immigration Law: Immigration Law: An Overview for EmployersAn Overview for Employers
Patrick J. Hatch, Esq.Patrick J. Hatch, Esq.
Hatch Law OfficeHatch Law Office
Durham, NCDurham, NC
Documents Verifying Employment Documents Verifying Employment Authorization for AliensAuthorization for Aliens
Form I-94 – Establishes identity and Form I-94 – Establishes identity and employment authorization for the employment authorization for the petitioning employer ONLYpetitioning employer ONLY
Form I-551 Alien Registration Card Form I-551 Alien Registration Card (“Green Card”)(“Green Card”)
Employment Authorization Document Employment Authorization Document (EAD)(EAD)
Employment Authorization:Employment Authorization:3 Classes3 Classes
1. Aliens authorized to work incident 1. Aliens authorized to work incident to their immigration status;to their immigration status;
2. Aliens permitted to work for a 2. Aliens permitted to work for a specific employer incident to their specific employer incident to their status, without obtaining an EAD; status, without obtaining an EAD; andand
3. Aliens eligible for employment 3. Aliens eligible for employment authorization, but who first must authorization, but who first must obtain an EAD from USCIS.obtain an EAD from USCIS.
1. Employment Authorized Incident 1. Employment Authorized Incident to Statusto Status
Green Card holdersGreen Card holders Certain lawful temporary residentsCertain lawful temporary residents Asylum applicantsAsylum applicants Fiancé(e) visa holdersFiancé(e) visa holders TPSTPS V visa holdersV visa holders Spouses of E and L visa holdersSpouses of E and L visa holders
2. Employment Authorized With 2. Employment Authorized With Specific Employer Based on StatusSpecific Employer Based on Status Includes many nonimmigrants: H-1B, Includes many nonimmigrants: H-1B,
H-2A, H-2B, H-3, I, J-1, L-1A, L-1B, O-H-2A, H-2B, H-3, I, J-1, L-1A, L-1B, O-1, O-2, P-1, P-2, Q-1, and R visas1, O-2, P-1, P-2, Q-1, and R visas
Includes classes of foreign Includes classes of foreign government officials and government officials and representatives of an international representatives of an international organizationorganization
I-94 cardI-94 card
3. Employment Authorized Only 3. Employment Authorized Only With USCIS DocumentsWith USCIS Documents
Aliens adjusting status Aliens adjusting status Spouses and dependents of foreign Spouses and dependents of foreign
government officials government officials Note: 90 day requirementNote: 90 day requirement
Student Employment Authorization:Student Employment Authorization:2 categories2 categories
1. Post completion optional practical 1. Post completion optional practical training (OPT)training (OPT)
2. Curricular practical training (CPT)2. Curricular practical training (CPT)
Which Immigration Laws Affect Which Immigration Laws Affect Employers?Employers?
Immigration & Nationality Act of 1952, Immigration & Nationality Act of 1952, including later amendmentsincluding later amendments
Immigration Reform and Control Act of 1986Immigration Reform and Control Act of 1986 Illegal Immigration Reform and Immigrant Illegal Immigration Reform and Immigrant
Responsibility Act of 1996Responsibility Act of 1996 H-1B capH-1B cap American Competitiveness in the 21American Competitiveness in the 21stst Century Century
Act of 2000Act of 2000 Legal Immigration and Family Equity Act of Legal Immigration and Family Equity Act of
20002000
Immigration & Nationality Act of Immigration & Nationality Act of 1952 (INA)1952 (INA)
Verify employment eligibility and Verify employment eligibility and complete the I-9, Employment complete the I-9, Employment Eligibility Verification FormEligibility Verification Form
Record the type of EADRecord the type of EAD
Immigration Reform and Control Immigration Reform and Control Act of 1986 (IRCA)Act of 1986 (IRCA)
Sanctions against employers Sanctions against employers Prohibits discrimination Prohibits discrimination Legalization programsLegalization programs Systematic Alien Verification Systematic Alien Verification
Entitlements (SAVE) ProgramEntitlements (SAVE) Program
Employer’s Dilemma: Opposing Employer’s Dilemma: Opposing InterestsInterests
Employers must ensure that all Employers must ensure that all workers are authorized for workers are authorized for employment.employment.
However, employers are prohibited However, employers are prohibited from considering foreign appearance, from considering foreign appearance, accent, or national origin in hiring accent, or national origin in hiring practices.practices.
Illegal Immigration Reform and Illegal Immigration Reform and Immigrant Responsibility Act of Immigrant Responsibility Act of
1996 (IIRIRA)1996 (IIRIRA) Established 3-year and 10-year barsEstablished 3-year and 10-year bars
H-1B Visa CapH-1B Visa Cap
65,000 annually65,000 annually Apply on April 1 for October 1 start Apply on April 1 for October 1 start
datedate Cap is met on the first dayCap is met on the first day
American Competitiveness in the American Competitiveness in the 2121stst Century Act of 2000 (AC21) Century Act of 2000 (AC21)
PortabilityPortability Requires: (1) lawful admission, (2) Requires: (1) lawful admission, (2)
timely-filed, and (3) no unauthorized timely-filed, and (3) no unauthorized employment employment
Problem for I-9Problem for I-9
Legal Immigration and Family Legal Immigration and Family Equity Act of 2000 (LIFE Act)Equity Act of 2000 (LIFE Act)
VV K-3 and K-4K-3 and K-4 Allowed for new groups of unlawful Allowed for new groups of unlawful
residents the ability to adjust statusresidents the ability to adjust status
Who Are All These Undocumented Who Are All These Undocumented Workers?Workers?
Entered illegallyEntered illegally OverstayOverstay Application was deniedApplication was denied
I-9 Process: Section 1I-9 Process: Section 1
USCIS.GOVUSCIS.GOV Section 1: Employee attests, under Section 1: Employee attests, under
penalty of perjury, that he/she is a penalty of perjury, that he/she is a US citizen, lawful permanent US citizen, lawful permanent resident, or alien authorized to work resident, or alien authorized to work
Completed at time of hireCompleted at time of hire
I-9 Process: Section 2I-9 Process: Section 2
Record examination Record examination Must accept documents if they Must accept documents if they
appear “reasonably genuine” and appear “reasonably genuine” and relate to the person presenting the relate to the person presenting the documentsdocuments
Completed within 3 days of starting Completed within 3 days of starting workwork
CopiesCopies
I-9 Process: What Do I Do With It?I-9 Process: What Do I Do With It?
Keep on file for 3 years from the date Keep on file for 3 years from the date of hire OR 1 year after the last day of of hire OR 1 year after the last day of work, whichever is laterwork, whichever is later
ElectronicElectronic Exceptions: Independent contractors Exceptions: Independent contractors
and sporadic domestic workersand sporadic domestic workers
Employer’s ObligationsEmployer’s Obligations
IRCA prohibits any person or entity IRCA prohibits any person or entity from knowingly hiring or continuing from knowingly hiring or continuing to employ an unauthorized workerto employ an unauthorized worker
Actual or constructive knowledgeActual or constructive knowledge What is “constructive” knowledge?What is “constructive” knowledge? Re-verification required Re-verification required Can ICE investigate?Can ICE investigate?
““No-Match” LettersNo-Match” Letters
When? When? Check typos and talk with employees Check typos and talk with employees Fines?Fines? Good-faith defenseGood-faith defense
Employee’s RightsEmployee’s Rights
Freedom from discriminatory Freedom from discriminatory practicespractices
Fines?Fines? Can’t consider date of EAD expirationCan’t consider date of EAD expiration Unauthorized workers Unauthorized workers Focus of questionsFocus of questions
Penalties for DiscriminationPenalties for Discrimination
$275-$2,200 per individual $275-$2,200 per individual discriminated against for the 1discriminated against for the 1stst offenseoffense
$2,200-$5,500 for the 2$2,200-$5,500 for the 2ndnd offense offense $3,300-11,000 for subsequent $3,300-11,000 for subsequent
offensesoffenses Fines are discretionaryFines are discretionary Office of Special Counsel or EEOC Office of Special Counsel or EEOC
Penalties for Employing Penalties for Employing Unauthorized AliensUnauthorized Aliens
Felony offense: (1) bring an illegal alien into Felony offense: (1) bring an illegal alien into the US, (2) transport to further their the US, (2) transport to further their unlawful presence, (3) conceal, harbor, or unlawful presence, (3) conceal, harbor, or shield an illegal alien from detection, or (4) shield an illegal alien from detection, or (4) encourage or induce an alien to illegally encourage or induce an alien to illegally enter the countryenter the country
11stst Offense: $375 to $3,200 for each alien Offense: $375 to $3,200 for each alien 22ndnd Offense: $3,200 to $6,500 for each alien Offense: $3,200 to $6,500 for each alien Subsequent Offenses: $4,300 to $16,000 Subsequent Offenses: $4,300 to $16,000
for each alienfor each alien
How to Ensure Employment How to Ensure Employment AuthorizationAuthorization
E-Verify Program E-Verify Program IMAGE (ICE Mutual Agreement b/w IMAGE (ICE Mutual Agreement b/w
Govt and ERs) Govt and ERs) SSN Verification ServiceSSN Verification Service SAVE (Systematic Alien Verification SAVE (Systematic Alien Verification
for Entitlements)for Entitlements)
My Employee Was Illegal, But Now My Employee Was Illegal, But Now Is Legal: What Do I Do?Is Legal: What Do I Do?
Simple answer: Be consistent. Apply Simple answer: Be consistent. Apply your procedure or policy consistently your procedure or policy consistently – terminate employees for lying or – terminate employees for lying or fraud, if that is what you usually do.fraud, if that is what you usually do.
Questions?Questions?My Contact InfoMy Contact Info
[email protected]@hatchlawoffice.com
919-688-1788919-688-1788
Thank YouThank You