As expected, on Monday, April 7, 2014, the U.S. Citizenship and Immigration Services (“USCIS”) announced that a sufficient number of H-1B petitions had been received from April 1, 2014, through April 7, 2014, to meet the statutory cap for fiscal year 2015. The statutory cap was reached in both the general Bachelor’s category, as well as the U.S. advanced-degree category. In short, more H-1B petitions were filed than the USCIS is authorized to approve for fiscal year 2015, which begins on October 1, 2014. Consequently, for the second year in a row, USCIS will conduct a random selection process (i.e., lottery) to determine which filed H-1B petitions will be selected for processing/adjudication. The USCIS has not yet announced the date when the lottery will be held.
As background, the USCIS is only authorized to issue 85,000 H-1B approvals for each fiscal year, which includes 20,000 visas under the advanced-degree category and another 65,000 visas under the general category. The 65,000 H-1B visas are available for beneficiaries who possess at least a Bachelor’s degree, with 6,800 of those available visas allocated as H-1B1 visas for qualifying nationals from Chile and Singapore. An additional 20,000 approvals are available under the U.S. advanced-degree exemption for beneficiaries with a Master’s or higher degree obtained from a U.S. college or university.
Consistent with USCIS practice, the USCIS will first utilize the lottery for petitions that qualify for the advanced-degree category under which 20,000 visas are available. Eligible petitions that are not selected for processing in this category will be submitted for the general lottery under which 65,000 visas are available. Any petitions not selected in the H-1B lottery will be returned to the employer, together with any applicable filing fees.
Although the H-1B season for fiscal year 2015 appears to be complete, certain H-1B petitions are exempt from the numerical statutory cap. Therefore, employers may continue to file H-1B petitions with the USCIS for new H-1B employment with a college or university, or a nonprofit research or governmental research organization – often referred to as “cap-exempt institutions.” In addition, employers may continue to submit H-1B petitions for current workers who have previously been counted against the H-1B cap.
Finally, employers seeking to employ foreign nationals in the United States should note that there may be other non-immigrant visa categories that could be a viable alternative to the H-1B category, including (but not limited to) the TN (NAFTA Professionals), the L (Intra-Company Transferee), the E (Investor), and the O (Extraordinary Ability) categories.
After a brief hiatus prompted by the Federal Government shutdown, employers regained access to and use of the federal E-Verify system on October 17, 2013. E-Verify is an Internet-based employment eligibility verification system administered by the U.S. Citizenship and Immigration Services (“USCIS”). The E-Verify system does not serve as a replacement for the I-9 employment verification process, but rather serves as an additional method by which employers may confirm employee I-9 information against certain government databases (e.g., Department of Homeland Security and the Social Security Administration).
Beginning on October 1, 2013, employers were denied access to the E-Verify system for the duration of the government shutdown. Under normal circumstances, those employers enrolled in the E-Verify program – either voluntarily or involuntarily (e.g., mandatory for those federal contractors with a FAR E-Verify contract clause and employers in certain states such as Arizona and Mississippi) – are required to create a verification case in the E-Verify system for any newly-hired employee by no later than three business days after the employee starts to work for pay. During the government shutdown, however, the USCIS suspended the “three-day rule” in which enrolled employers are mandated to create a case in the E-Verify system. Now that E-Verify is once again operational, the USCIS has afforded employers a grace period in which to address E-Verify issues impacted by the government shutdown. Specifically, the USCIS has issued guidance indicating that employers have until no later than November 5, 2013, to create E-Verify cases that could not be created for those employees due to the unavailability of the system.
In its recent guidance, the USCIS also addressed how employers should properly enter a case in E-Verify now that access to the system has been restored. Generally, when an E-Verify query is made more than three days after the date of hire, the E-Verify system will require the employer to provide an explanation for the delayed entry. In its October 17 guidance, the USCIS advised that when an employer is prompted to provide a reason for a delayed case creation which was caused by the government shutdown, the employer should select “Other” from the drop-down list and enter the phrase “federal government shutdown" in the field.
In addition, the USCIS noted in its October 17 guidance that federal contractors should follow the same instructions. If a federal contractor was unable to comply with certain E-Verify deadlines due to the government shutdown, the federal contractor should contact its contracting officer and reference the instructions provided by the USCIS in its guidance.
Additionally, the USCIS offered the following guidance on other tangential E-Verify issues that may have been impacted as a result of the government shutdown:
Employees will be given an extension of 12 federal business days in order to contact the DHS or the SSA to resolve any Tentative Non-Confirmation (TNC) notice received or referred between September 17, 2013, and September 30, 2013, that the employee was unable to resolve due to the government shutdown. Employers may add 12 business days to the date printed on either the Referral Letter or the Referral Date Confirmation.
Employers are instructed to now initiate referral processing in E-Verify for employees who decide to contest any TNC issued during the unavailability period of E-Verify.
Employers must close E-Verify cases for those employees who received a Final Nonconfirmation (FNC) or No Show due to the federal government shutdown by selecting one of the following options from the drop-down menu: (1) “The employee continues to work for the employer after receiving a Final Non-Confirmation result”; or (2) “The employee continues to work for the employer after receiving a No Show result.” The employer must then create a new E-Verify case for the employee.
Finally, employers should be aware that the USCIS’ suspension of the “three-day rule” during the government shutdown period did not extend or otherwise impact employers’ obligations regarding the timely completion of the Form I-9 or any other Form I-9 requirements. Employers should also be mindful that the “three-day rule” for E-Verify cases is once again in effect for all newly-hired employees.
Last week, the United States Citizenship and Immigration Services (“USCIS”) published a correction notice in the Federal Register clarifying that the effective date of the newly revised Form I-9 begins on May 7, 2013. Earlier communications from USCIS had described the Form I-9’s effective date as being afterMay 7, 2013.
As we reported in our March 20, 2013 blog post, the USCIS provided a 60-day grace period during which employers may continue to use select prior versions of the Form I-9 -- (Rev. 02/02/09)N and (Rev. 08/07/09)Y -- to verify the employment eligibility of new hires. This recent notice clarifies that the grace period ends on May 6, 2013, and that beginning May 7, 2013, employers may not use any prior versions of the Form I-9 for purposes of employment eligibility verification.
However, employers should note that the grace period does not apply to reverification(s) of existing employees. As of March 8, 2013, employers are required to use the new Form I-9 (Rev. 03/08/13)N for any reverification of existing employees (if necessary) or for rehires.
If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.
On March 8, 2013, the United States Citizenship and Immigration Services (the “USCIS”) released the long-awaited revisions to the Form I-9 (Rev. 03/08/13)N. In an August 2012 blog post, we informed employers that they could continue to use the then-current version of the form – despite its August 31, 2012 expiration date. With the revised Form I-9 now in circulation, the USCIS has strongly encouraged employers to immediately use the updated form, though the agency has provided a 60-day grace period (until May 6, 2013) during which employers may continue to use select versions of the Form I-9 – (Rev. 02/02/09) and (Rev. 08/07/09) – for verifying the employment eligibility of new hires. As of March 8, 2013, however, employers must use the revised Form I-9 (Rev. 03/08/13)N for conducting reverification(s) of existing employees. Beginning May 7, 2013, employers will no longer be permitted to use any expired version of the Form I-9. Employers who fail to adhere to these phase out guidelines may be subject to applicable fines and penalties.
By way of background, the Immigration Reform and Control Act of 1986 (“IRCA”) requires employers to verify the identity and legal authorization of all individuals, including U.S. citizens, hired after November 6, 1986, by requiring the individuals to present facially valid documentation. In order to complete the I-9 verification process, the employer is required to verify the individual’s identity and to further confirm that the individual is authorized to accept employment in the United States. For record-keeping purposes, an employer must retain completed Form I-9s for the later of three (3) years after an individual’s date of hire or one (1) year after the employment relationship ends.
One of the USCIS’ primary goals for this revised Form I-9 is to “minimize errors in form completion." Accordingly, there are several key revisions which aim to accomplish this objective. First and foremost, employers will notice that the new Form I-9 itself is no longer a one-page document, but now consists of two pages.
Second, the new Form I-9 instructions / List of Acceptable Documents has increased from five (5) pages to nine (9) pages (inclusive of the 2-page form). The expanded set of directions is designed to provide both employers and employees with additional guidance and examples in an effort to assist the parties to accurately complete the form; detailed guidance has been noticeably absent from prior versions of the Form I-9. For instance, the new Form I-9 instructions explain that an international address may not be used by the individual to complete the address field, unless the employee is a border commuter from Canada or Mexico. Furthermore, the new instructions offer the following as a helpful example to address timing/counting issues for completion of the Form I-9: “[I]f an employee begins employment on Monday, the employer must complete Section 2 by Thursday of that week.”
In addition to improving the instructions, the USCIS has made a number of other key revisions to the new Form I-9. A summary of the main changes within each section of the form appears below.
Section 1: Employee Information and Attestation
A clear reminder has been inserted at the beginning of Section 1 to clarify and remind both employers and employees that this section of the Form I-9 must be completed by the employee no later than the first business day of employment.
The “Maiden Name” data field has been renamed to “Other Names Used (if any)."
The Social Security Number data field has been reformatted to specifically require a nine-digit number; however, this data field continues to remains voluntary, unless the employer is enrolled in the E-Verify Program.
New data fields have been added which permit an individual to voluntarily provide email addresses and telephone numbers; since these data fields remain optional, however, employers are instructed to place “N/A” in the field if the employee does not provide information responsive to the question(s).
A new data field has been added to clarify that a foreign national authorized for employment may provide the A-Number/USCIS Number OR Form I-94 Admission Number.
New data fields have been included so that the foreign national may provide information regarding a foreign passport number and country of issuance in those instances where the foreign national provides an Admission Number (I-94), issued by the U.S. Customs and Border Protection, as part of the I-9 process.
The USCIS has included a placeholder where a 3-D Barcode may eventually be added. At the present time, however, the 3-D Barcode has no functional purpose.
Finally, the USCIS has added a stop sign symbol at the end of Section 1 to deter and prevent employees from inadvertently completing Section 2.
Section 2: Employer or Authorized Representative Review and Verification
“Authorized representatives” (those individuals who do not necessarily work for the employer, but have been granted limited power to conduct employment eligibility verification on behalf of the employer in certain circumstances) are expressly recognized as having the ability to complete Section 2 (in addition to employer representatives).
Section 2 now specifically states that this section must be completed and signed within three (3) business days of the employee’s first day of employment.
Employers are now required to add the employee’s name (first / middle initial / last) in the new data field provided in Section 2.
The USCIS has clarified that an employer’s employment eligibility verification obligations are triggered the day the employee begins to work for pay (i.e., commencement of employment for wages or other remuneration). As such, this is reflected on the new Form I-9, which no longer asks for when an employee began employment, but rather the employee’s first day of employment.
Additional data fields – document number and expiration date – have been added for List A documents. These additional spaces will enable employers to record employment authorization expiration dates for exchange visitors and SEVIS numbers and program end dates for students. Prior versions of the Form I-9 did not provide sufficient space for employers to record all of the necessary information.
Section 3: Reverification and Rehires
The new Form I-9 also includes minor revisions to Section 3. For instance, the revised form clarifies that only List A and List C documents need to be reverified if the employee’s previous grant of employment authorization has expired; List B documents, which are used to establish identity, are notably omitted from the list of documents that need to be reverified.
Finally, the List of Acceptable Documents has also been revised and updated. Specifically, List C now makes clear that a Social Security Card is a valid document for purposes of establishing work authorization, unless it contains one of the following 3 notations on the face of the card:
"NOT VALID FOR EMPLOYMENT"
"VALID FOR WORK ONLY WITH INS AUTHORIZATION"; or
"VALID FOR WORK ONLY WITH DHS AUTHORIZATION."
In this age of heightened government enforcement, the release of a newly revised Form I-9 provides employers with the perfect opportunity to review their I-9 procedures to ensure compliance with IRCA. If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.
With 2012 now behind us and the start of a new year firmly underway, employers should be aware of the heightened possibility of an unexpected visitor showing up in the workplace in 2013. Under President Obama’s Administration, the U.S. Immigration and Customs Enforcement (“ICE”) has dramatically ramped up I-9 audits and enforcement actions, conducting more than 3,000 audits in fiscal year 2012, as compared to only 250 conducted in fiscal year 2007. With four more years on the horizon for this Administration, one New Year’s resolution that all employers should make is to ensure that their Form I-9s are in compliance before ICE comes knocking.
ICE serves as the principal investigative arm of the U.S. Department of Homeland Security (“DHS”). One of ICE’s primary purposes is to police the Immigration Reform and Control Act (“IRCA”). Under IRCA, employers are prohibited from knowingly hiring or employing unauthorized workers. Employers are required to complete Form I-9s for all employees, including U.S. citizens, hired after November 6, 1986, to verify an employee’s identity and to confirm that the individual is authorized to accept employment in the United States. Employers are also prohibited from discriminating against employees on the basis of national origin, citizenship, or immigration status, which includes engaging in “document abuse” (i.e., demanding that certain employees show specific documents because of the individual’s national origin, citizenship, or other protected status) or requiring “indemnity bonds” guaranteeing that the individual is authorized to work in the United States. For record-keeping purposes, an employer is required to retain completed Form I-9s for the later of three years after an individual’s date of hire or one year after the employment relationship ends.
Along with the steady increase in the number of audits conducted, the dollar value of penalties assessed for IRCA violations has also significantly escalated under the Obama Administration. Specifically, penalties have increased from $1 million in fiscal year 2009 to $13 million in 2012. Employers who knowingly hire or continue to employ unauthorized workers can expect monetary penalties to begin at $375 per violation and reach as high as $16,000 for repeat offenders. Employers may also be fined for errors found on the Form I-9s. Fines for substantive violations and uncorrected technical violations range from $110 to $1,100 per violation. In addition, ICE may also subject an employer to debarment, whereby the employer is prevented from participating in future federal contracts or prohibited from receiving other government benefits. Criminal penalties may also be imposed under certain circumstances. In the 2012 fiscal year alone, ICE arrested approximately 238 corporate managers and officers.
Taking affirmative steps prior to receiving a government audit notice or an on-site visit from ICE could mean the difference between a verbal warning, a monetary fine, or a criminal penalty, particularly if an employer chooses to contest the issuance of any ICE fines. Therefore, employers are encouraged to take proactive measures, which may include the following: (1) implementing a written I-9 policy, which includes anti-discrimination protocols and/or Social Security “no match” letter resolution procedures; (2) utilizing voluntary programs such as E-Verify (mandatory for federal contractors) and Social Security Number Verification Services (“SSNVS”) provided by DHS and the Social Security Administration to confirm employment eligibility; (3) training designated Human Resources personnel on proper I-9 verification procedures; (4) having an outside third-party or properly trained employee (who was not involved in the original I-9 process) conduct self-audits of I-9 records; (5) immediately correcting and documenting mistakes on Form I-9s; (6) instituting a confidential tip line for employees to freely report I-9 and/or work eligibility issues; and (7) avoiding any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.
As reported on this blog in August 2012, employers should also be aware that a new Form I-9 is in the works. For now, employers should continue to use the Form I-9 that contains an August 31, 2012 expiration date. We will continue to monitor the availability and issuance of any updates pertaining to a new Form I-9 and will provide additional details on this blog when further information becomes available.
On September 26, 2012, the Second Department Appellate Division held that an employer who hires undocumented aliens in violation of the Immigration Reform and Control Act of 1986 ("IRCA") is still shielded by the Workers' Compensation Law if those employees are injured on the job.
IRCA was adopted by Congress in an attempt to curtail illegal immigration. Toward that end, it imposed a duty upon employers to verify a prospective employee's identity and work eligibility by examining the individual's documentation prior to hiring. Absent the requisite documentation, employment cannot be offered. Employers who violate IRCA are subject to civil and criminal penalties.
The Workers' Compensation Law insulates employers from personal injury claims brought by their employees, and also precludes third party claims against the employer for contribution and indemnification except in instances of “grave injury” or where the employer contracted to provide such indemnification.
How do these federal and state provisions relate? In a matter of first impression, the Second Department Appellate Division was asked to decide whether the protection afforded employers under the Workers' Compensation Law was still available in the event that the employer violated IRCA. Yes, it was, according to the decision in New York Hospital Medical Center of Queens v. Microtech Construction Corp.
In arriving at that conclusion, the Court made several observations. First, it noted that in adopting IRCA, Congress expressly preempted all state and local laws that imposed civil or criminal sanctions upon employers for similar offenses. It also observed that the statute was silent as to any further preemptive effect. Indeed, to the contrary, IRCA’s legislative history demonstrated a lack of intent to diminish existing labor protections. Consistent with that conclusion, the Court determined that there could be no express preemption of the Workers' Compensation Law, as none of its relevant provisions seek to impose civil or criminal sanctions for employing undocumented aliens.
While the Court acknowledged that stripping away the protections of the Workers' Compensation Law from an IRCA-violating employer may support the federal statute’s ultimate goals, it held nevertheless that retaining such protections despite an IRCA violation did not present such an obstacle to attaining Congress’ objectives that the Workers' Compensation Law could be considered preempted. Thus, the Court ruled that an IRCA violation did not serve to diminish or remove the protections afforded an employer under the Workers' Compensation Law.
In the coming weeks, many employers may notice that Form I-9 – which employers are required to complete for newly-hired employees – is set to expire on August 31, 2012. Employers should be aware that the U.S. Citizenship and Immigration Services (“USCIS”) has advised continued use of the current Form I-9 past this looming expiration date.
As for developments on a new Form I-9, the USCIS published notice of the revised Form I-9 on March 27, 2012, followed by a public comment period, which ended on May 29, 2012. Until further notice from the USCIS, employers should continue to use the current Form I-9.
As background, employers are required to complete the Form I-9 to verify and/or re-verify an employee’s identity to confirm the individual is (or remains) authorized to accept employment in the United States. For recordkeeping purposes, an employer must retain completed I-9 forms for the later of three (3) years after an individual’s date of hire or one (1) year after the employment relationship ends.
The Bond Immigration Practice Group will continue to monitor the availability and issuance of the new Form I-9 and will provide additional details on this blog when further information becomes available.
Many employers are justifiably confused as to whether they may accept a receipt notice showing that an employee has applied for a particular document that is acceptable for I-9 employment eligibility verification purposes. With U.S. Immigration and Customs Enforcement (“ICE”) serving an additional 1,000 Notices of Inspection to employers for I-9 audits in June 2011 alone, it is a good time to refresh your understanding about the use of receipts for initial verification, reverification and to correct errors found in the course of self-audits.
As a general rule, a receipt notice showing an application for an initial period of employment or for an extension of an expiring employment authorization period is not acceptable during the initial I-9 verification or a subsequent reverification. There are, however, exceptions. An employer must accept a receipt during the I-9 process in place of one of the otherwise accepted documents – known as a List A, List B or a List C document – set forth on the instructions accompanying the Form I-9 in the following circumstances:
Any employee may present a receipt showing that an application for a replacement List A, B, or C document has been submitted because the document was lost, stolen, or damaged. The receipt notice serves to verify the individual’s employment authorization for 90 days from the date of hire, or, in the case of reverification, the date the employment authorization expires. Upon the expiration of the receipt period, the employee must present the actual document for which the receipt was obtained.
An employee who is a lawful permanent resident may present a receipt that constitutes an arrival card which is a portion of Form I-94 or Form I-94A which contains a temporary I-551 stamp (and photograph). This temporary I-551 stamp placed on the I-94 card, which is found within the employee’s passport, is considered the receipt. This type of receipt is considered valid as long as it is submitted for I-9 purposes before the expiration date listed on the temporary I-551 stamp. If there is no listed expiration date on the I-551 stamp, the receipt expires within one year from the date of issue.
An employee who is a refugee may present a receipt that constitutes Form I-94 or Form I-94A with an unexpired refugee admission stamp. The receipt notice serves to verify the individual’s employment authorization for 90 days from the date of hire, or, in the case of reverification, the date the employment authorization expires. Upon the expiration of the receipt period, the employee must present an unexpired employment authorization document (i.e., Form I-766, Form I-688B) or an unrestricted Social Security Card combined with a valid List B document.
Certain employees who hold non-immigrant visas and who are authorized to work for a specific employer incident to status (e.g., E, H, L, O, P, and TN) may continue to work for their sponsoring employers up to 240 days following the expiration of their authorized period of stay. In order for this rule to apply, the application or petition for an extension of status must be filed in good faith and before the expiration of the original status. In these cases, a USCIS receipt showing that a timely extension application or petition was filed (i.e., Form I-797) must be accepted for reverification purposes.
Individuals holding valid H-1B visas for another employer may “port” or work for another employer once the new or prospective employer has timely filed an H-1B portability petition on behalf of the individual. An application is generally considered “filed” once it is accepted for processing by the U.S. Citizenship and Immigration Services (USCIS). A copy of the Receipt Notice for the filed H-1B portability petition, together with the copy of the alien’s unexpired I-94 card can be accepted as evidence of employment authorization for employment verification purposes. Once the H-1B portability petition is approved, the employer should update the I-9 by reviewing the passport with the newly issued H-1B Approval Notice for the employee at issue.
In April 2008, USCIS issued a rule specifically pertaining to F-1 students. Under the rule, if a student in lawful F-1 status is the beneficiary of a timely filed H-1B petition requesting a change of status (from F-1 to H-1B), the student’s status is extended, along with any grant of optional practical training (“OPT”) work authorization, until October 1. In these cases, the employer may accept the expired OPT work authorization document combined with an endorsed Form I-20 that demonstrates that the student’s employment work authorization – OPT – has been extended and is still valid, and the USCIS Receipt Notice (Form I-797) showing receipt of the timely filed H-1B Petition.
Employers should also be aware of the following additional considerations:
A receipt showing an employee has applied for an employment authorization document – whether it is for an initial grant of work authorization or a renewal – cannot be accepted as sufficient evidence of work authorization for I-9 purposes.
A receipt is never acceptable for employment lasting less than 3 days.
An employer’s failure to honor a receipt in one of the circumstances or exceptions set forth above may constitute document abuse and is prohibited under the Immigration and Nationality Act.
Immigration and Customs Enforcement (“ICE”), the enforcement unit of the U.S. Immigration Service, is continuing its vigorous efforts to police the Immigration Reform and Control Act (“IRCA”), with a particular emphasis on employer audits and enforcement actions. IRCA prohibits employers from knowingly hiring or employing unauthorized workers, and requires employers to verify the work authorization of employees through the Form I-9 employment verification process at the time of initial employment. Under the current Administration, ICE has dramatically ramped up I-9 audits and enforcement actions. In the fiscal year ending September 30, 2010, ICE conducted over 2,000 employer audits, compared to only 250 just three years ago. The dollar value of penalties assessed and the number of debarments of federal contractors for IRCA violations has also significantly increased.
ICE’s aggressive approach was highlighted last month by two investigations. First, a national retail clothing company agreed to pay a $1 million fine based on an ICE audit of its electronic I-9 verification system. While the audit did not reveal any evidence of the employment of unauthorized workers, there were systemic deficiencies in the employer’s compliance program that motivated ICE to demand the substantial fine.
In addition to seeking civil penalties and potential debarment from federal contracts, ICE has pursued criminal charges against employers and company officers. IRCA authorizes criminal penalties for employers that engage in a “pattern or practice” of knowingly employing unauthorized workers. In one recent case, ICE identified 16 unauthorized workers through an I-9 audit of company records. The company advised ICE that the employees had been terminated, but a subsequent investigation revealed that at least two of the workers remained on the payroll and had been advised by the business owner to “go out and get good social security numbers.” The business owner and the company vice president now face criminal charges for knowingly continuing to employ unauthorized aliens.
These enforcement actions derive from ICE’s 2009 comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for lawful workers. Under this strategy, ICE focuses its resources on the auditing and investigation of employers suspected of knowingly employing illegal workers. In conjunction with this initiative, ICE has conducted high-profile, targeted audits of employers with connections to public safety and national security, as well as those employers identified during ICE investigations as potential employers of unauthorized workers.
The aggressive enforcement attitude of ICE should be an urgent reminder to senior human resources personnel to: (i) re-evaluate I-9 procedures; (ii) conduct self-audits of I-9 records; (iii) remain alert to circumstances that may suggest an issue with an employee’s work authorization; and (iv) avoid any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.
As all employers know, the Immigration and Nationality Act (“INA”) makes it unlawful for an employer to employ an individual who is not authorized to work in the United States. However, the non-discrimination provisions of the INA prohibit an employer from discriminating against certain individuals based on national origin or citizenship status with respect to, among other things, hiring and termination. As a result, employers are often faced with a dilemma: how far can an employer go to obtain information regarding an applicant’s immigration status during the hiring process without violating the INA. This dilemma may appear to be particularly difficult when making an employment decision based on an individual’s need for visa sponsorship. But, as explained below, that problem can be solved relatively simply.
Only certain “protected individuals” are protected from citizenship status discrimination under the INA. The term “protected individuals” has been defined to include: United States citizens, United States nationals, temporary residents, recent lawful permanent residents, refugees and asylees. The Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices (“OSC”), the entity responsible for enforcing the employment discrimination provisions of the INA, has specifically opined that an employer has no obligation to sponsor an individual’s visa application.
Further, the OSC has advised that temporary visa holders are not “protected individuals” under the statute, and therefore, not protected from citizenship status discrimination. This includes, but is not limited to, any non-immigrant visa holders such as H-1Bs, TNs or F-1 visas with Optional Practical Training (“OPT”) work authorization. Therefore, the OSC has stated that employment decisions based solely on an applicant’s need for visa sponsorship, either currently or in the future, would generally not be actionable under the INA.
Because temporary visa holders are not subject to INA’s citizenship status discrimination provisions, OSC has stated that an employer may ask about an applicant’s need for visa sponsorship during the hiring process and has approved the use of the following questions on employment applications or in employment interviews:
1. Are you legally authorized to work in the United States? ____ Yes ____ No
2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B, TN, etc.)? ____ Yes ____ No
Despite OSC’s approval of such questions, it is important to note that the New York State Division of Human Rights has not expressly indicated whether this type of question would be a lawful or unlawful interview question.
If an employer does decide to include a question regarding visa sponsorship on its employment application or to ask a corresponding question during the employment interview, it is advisable to develop an internal policy that describes the circumstances, if any, under which the employer will consider potential visa sponsorship for an individual applicant and/or employee. Further, if there are specific job titles or categories for which the Company does not intend to sponsor any individual, either now or in the future, this fact should also be made clear during the hiring process (for example, by including visa sponsorship guidelines in the advertising materials, and informing all applicants about visa sponsorship guidelines at the beginning of the interview process, etc.).
Foreign nationals frequently approach employers with a request to sponsor them for permanent residency based on employment. As many employers know, the first step in the sponsorship process consists of obtaining an approved labor certification application from the U.S. Department of Labor (DOL). This permanent labor certification program (often referred to as the “PERM” program) was redesigned by the federal government in 2005 and contains very specific rules and regulations detailing how employers must conduct any recruiting for a permanent residency position.
One requirement for obtaining certification is proof that there are no minimally qualified U.S. workers for a specific job vacancy within a specific job pool. In order to satisfy that requirement, it is very important for the employer to clearly and properly define the qualification threshold below which the employer is not willing to hire any job applicant - the employer's actual minimum requirements for the position. As a result, PERM recruiting differs significantly from the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one that meets the job's minimum requirements. Employers should strictly comply with DOL’s regulations and keep the following points in mind when drafting minimum job requirements.
The General Rule for Stating Minimum Requirements
Job requirements must adhere to what is customarily required for the U.S. occupation and may not be tailored to the foreign national’s qualifications. In addition, the employer must be able to demonstrate that it has not hired workers with lesser educational qualifications or experience for substantially comparable positions. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless the employer can demonstrate that the job requirements arise out of “business necessity." The concept of business necessity comes into play when an employer’s minimum requirements exceed what DOL thinks are the appropriate minimum requirements for the position. To establish business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner. The employer should prepare business necessity documentation prior to submitting the labor certification application for processing.
Foreign Language Requirements
An employer should not specify a foreign language as a minimum requirement for the position, unless it is prepared to justify this requirement on business necessity grounds. As a general rule, DOL selects for audit cases requiring knowledge of foreign language. In order for the case to be approved, DOL requires the employer to justify knowledge of a foreign language requirement on business necessity grounds. This standard is difficult to satisfy. It can, however, be shown by proof of a need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English.
Experience Gained With the Employer
In defining the minimum requirements of the job, employers often include experience that the foreign national gained while in its employ. For example, if the sponsoring employer employed the foreign national for three years prior to filing the labor certification application, the employer may think it is appropriate to identify three years of experience in the position as the minimum requirement for the job. The DOL regulations, however, do not permit using experience gained with the sponsoring employer as a qualification for the position, unless: (1) the foreign national gained the experience while working for the sponsoring employer in a position not substantially comparable to the position for which the certification is being sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
Documenting the Foreign National’s Experience and/or Educational Credentials
Finally, where an employer specifies a certain degree or requires prior work experience, it should carefully examine the foreign national’s credentials prior to starting the labor certification application process to ensure that the foreign national actually meets the stated criteria. Prior experience, for instance, should be documented through “experience letters” obtained from the foreign national’s former employers. The letters should identify the exact period of employment, and include a detailed description of the duties performed and the skills acquired. To document educational requirements, the employer should carefully examine the foreign national’s degrees and/or certificates to ensure that they match the degree(s) specified as the minimum educational requirement for the position. If the foreign national’s degree does not specify a field of study, the employer should require the foreign national to obtain an official letter and transcripts from his college or university to confirm his field of study.
U.S. employers continue to rely upon the H-1 B Specialty Occupation Worker category to facilitate the temporary employment of foreign nationals in professional positions. In 2010, the U.S. Citizenship and Immigration Services ("USCIS") is authorized to issue 65,000 H-1 B approvals for those beneficiaries who possess at least a bachelor's degree, and an additional 20,000 approvals for those beneficiaries who have obtained a master's or higher degree from a college or university in the United States. These limits are often referred to as the "H-1B cap." These approvals authorize employment beginning October 1, 2010 (the beginning of the federal government's fiscal year).
Pursuant to federal regulations, interested U.S. employers may file H-1 B petitions six months in advance of the start of the fiscal year. This means that the earliest that a U.S. employer may submit a petition for a new H-1B worker, who has not already been counted against the H-1B cap, is April 1, 2010.
Over the past several years, the USCIS reached its 65,000 H-1B cap in two days, having received almost twice as many petitions as the allotted quota by April 2. Further, it took approximately four weeks for the USCIS to reach the H-1 B quota for master's level candidates. The remaining H-1 B cases were rejected.
While the H-1 B cap for 2009 was not fully exhausted until December 2009, we nevertheless anticipate a strong influx of H-1B filings this year. Employers are well advised to file their petitions for new H-1 B employees on April 1, 2010 to avoid being closed out of consideration by the H-1B cap.
In April 2009, the U.S. Department of Labor ("DOL") implemented a new electronic process for filing the Labor Condition Application ("LCA"), a necessary component of the H-1 B petition dealing with prevailing wage issues. Prior to April 2009, employers and their legal representatives could instantaneously certify the LCA. Since the LCA can no longer be automatically certified, the application must now be manually verified by the DOL. This new verification system, known as i-CERT, can take a minimum of seven (7) days to be completed by the DOL. Accordingly, additional time is needed to prepare this portion of the H-1 B petition.
