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

phatch@hatchlawoffice.comphatch@hatchlawoffice.com

919-688-1788919-688-1788

Thank YouThank You