Practice Areas

Employment Based Immigration Matters

Most employers are quite familiar with the reporting requirements of the Immigration Reform and Control Act (IRCA). The essential requirements of the verification process require the employer to substantiate the eligibility of the prospective employee to work in the United States. The employee must submit documentation to establish identity and authorization to work. INS Form I-9 is the appropriate form and should be utilized by all employers. It is relatively self-explanatory and outlines the various documents which establish either work authorization, identity, or both.

Since most employers are well versed in this procedure it is not necessary to elaborate. However, three issues are worthy of comment. We have received a number of calls from clients over the past few weeks regarding their obligations under the law with respect to suspect documents such as falsified Social Security Cards. This is a much more difficult issue to deal with than it appears. On the one hand, it is illegal for the employer to knowingly employ or continue to employ an authorized alien. 1 On the other hand, it is a discriminatory practice to demand that an employee produce additional documentation if the employee has already produced documentation establishing identity and authorization to work, especially if the practice is not uniformly enforced with respect to all employees.

Violations of the Title VII would come into play if certain groups are singled out for further scrutiny or if well-intentioned but illegal questions are raised concerning ethnicity or national origin.

An employer can be held liable for violations of IRCA if it "continues to employ an alien in the United States knowing the alien is unauthorized or has become unauthorized with respect to such employment." 3 An employer is "on notice" of a violation only after the INS notifies it that workers are unauthorized. 4 Thus, INS suspicions or reasonable beliefs of violations will not suffice to make out a case of a knowing violation against an employer. Once notified, an employer must be given a reasonable amount of time to correct any alleged violations. Generally, a "grace" period exists between the time of the issuance of a citation and the existence of a violation. This time period is based on the recognition that the immediate dismissal of employees without some allowable investigatory period would raise due process concerns both for the employer and the affected employee. 5 The length of this "grace period" depends upon the facts and circumstances and the degree of certainty of the violations. 6 The INS has previously taken the position that the employee in question need not even be suspended during this period as long as the employer makes a timely investigation. 7

The solution is to accept, on their face, any documents that reasonably appear to be genuine and make copies of the documents submitted to verify authorization and identity. This will preserve the good faith defense that is available to employers without running into potential discrimination problems. Unless an employer is going to uniformly apply verification procedures, it runs the risk of potential discrimination of a protected class.

Further, once an employer has received notice from the INS that an employee is unauthorized or that existing documentation is insufficient to establish compliance with IRCA, it must take affirmative action to make a reasonable inquiry into the matter. Good faith reliance on the self serving statements of the affected employee is clearly insufficient. Contacting the INS, the Social Security Administration, a lawyer, or requesting additional documentation from the employee at this time is certainly warranted and would insulate any potential discrimination charge.

The other issue that bears noting is the separation of the I-9 documentation from the general personnel files of the employees. Since the INS is authorized to audit compliance with the provisions of IRCA, an employer may find itself on the receiving end of an INS compliance audit. It is generally a good idea to maintain the I-9's together in a separate file so they may be easily produced for inspection. This will allow the audit to take place without the INS having access to confidential and sensitive personnel information.

Most employers, however, are probably unaware of the other employment-based provisions of the immigration laws that will allow immigrants or foreign nationals to work in the United States. Those foreign nationals seeking to establish permanent residency here can obtain visas under one of five categories in decreasing order of preference. The first preference is extended to priority workers. 8 This category includes aliens of extraordinary ability, 9 academics, and multinational executives and managers. Any executive or manager seeking admittance must have been employed by the foreign-based employer for at least one of the previous three years and must work in this capacity in the United States.

The second preference is for advanced degree professionals and aliens with exceptional ability in the arts, sciences or business. 10 This category generally requires a master's degree although lesser degrees coupled with substantial experience in the area of expertise may be considered. A job offer must have been extended and the employer must obtain a labor certification from the United States Department of Labor. This latter requirement includes a demonstration that substantial recruitment efforts have not produced a qualified U.S. worker for the job. An exemption from the labor certification requirement is available for those aliens whose admission would be in the "national interest" although what constitutes "national interest" is not defined.

The third preference is for professionals, skilled workers, and other workers. 11 Professionals must have a bachelor's degree. Skilled workers must have two years of training or experience. The same labor certification is required as in the second preference, however no national interest exemption exists.

The fourth and fifth preferences include special immigrants and investors, respectively. 12 A special immigrant refers to religious workers and ministers. Investor includes those aliens with one to three million dollars invested in a commercial enterprise employing at least 10 full time United States workers.

Visas are also issued for aliens seeking only to establish temporary residency in the United States. Transfers from parent, subsidiary or other related foreign corporations are available for executives, managers, and workers with specialized knowledge. 13 Time limits are imposed on these types of visas since the classification is only temporary. Specialty Occupations visas are authorized for those aliens with distinguished merit and ability seeking temporary residency in the United States. Aliens in this category must possess highly specialized knowledge in their field. The employer must complete a more rigorous "labor condition application." This will include information regarding prevailing wages, working conditions, current labor disputes, etc.

Temporary entry into the United States is also authorized for Canadian and Mexican aliens for business purposes under the North American Free Trade Agreement (NAFTA) under similar business categories as those noted above.

Clearly, there are a number of different methods which employers, foreign employees, or aliens may use to satisfy employment based immigration requirements.

1 8 U.S.C. §§1324a (a)(1), (2), and (b); See also U.S. v. New El Ray Sausage Co., 925 F.2d 1153 (9th Cir 1991).
2 See e.g. Jones v. DeWitt Nursing Home, OCAHO, Case No. 88-200202 (June 29, 1990).
3 New El Rey Sausage, 925 F.2d at 1156.
4 Mester Mfg. Co. v. I.N.S, 879 F.2d 561, 565 (9th Cir. 1989).
5 See 8 CFR § 274a.2(b)(vi).
6 New El Rey Sausage, 925 F.2d at 1157.
7 Id. At 1158.
8 Immigration and Naturalization Act § 203(b)(1).
9 This type of exception is also available to those seeking only temporary residency in the United States. See Immigration and Naturalization Act § 101(a)(15).
10 Immigration and Naturalization Act § 203(b)(2).
11 Immigration and Naturalization Act § 203(b)(3).
13 Immigration and Naturalization Act §§ 203(b)(4) and (5).
14 Immigration and Naturalization Act § 101 (a)(15)(L).