Other Visa Topics
Following is a list of the nonimmigrant visa topics covered in our Guide to U.S. Immigration Rules.
After many years of postponement, the final PERM (“Program Electronic Review Management”) regulation was published by the U.S. Department of Labor (“DOL”) on December 27, 2004, and became effective on March 28, 2005. As of March 28, 2005 PERM is the only way to file a Labor Certification (hereafter known as “LC”). A LC is required for most employment-based green card petitions. A LC is a determination by DOL that there are no U.S. workers who are qualified or available for the job.
The biggest advantage of PERM is that the DOL promises a 45-60 day turnaround time for a LC (which is not audited). All LCs are filed electronically with the DOL over the Internet. Before filing a LC, the employer must conduct specified recruitment activities. No documentation needs to be submitted with the application. However, the employer must maintain copies of the ads, resumes, and other documents on file. Also, under PERM, the employer must now offer 100% of the prevailing wage, not 95% of the prevailing wage as before.
The 322 page long PERM regulations are complex, but are revolutionizing the Labor Certification process.
The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens.
FOR WHO MUST EMPLOYERS COMPLETE FORM I-9?
Every U.S. employer must have a Form I-9 in its files for each new employee, unless:
CURRENT VERSION OF FORM I-9
The current version of the Form I-9 and the Handbook for Employers (M-274) are dated 06/01/2011.
WHAT SHOULD BE DONE WITH FORMS I-9 AFTER THEY ARE COMPLETED?
Unlike tax forms, for example, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee's employment is terminated, whichever is later. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection.
Note: U.S. immigration law does not prescribe or proscribe storage of a private employer’s I-9 records in employee personnel files. As a practical matter, however, particularly if a large number of employees are involved, it may be difficult to extract records from individual personnel files in time to meet a 3-day deadline for production of I-9 records for official inspection.
The law protects certain individuals from unfair immigration-related employment practices of a U.S. employer, including refusal to employ based on a future expiration date of a current employment authorization document. The U.S. government entity charged with oversight of the laws protecting against unfair immigration-related employment practices is the Office of Special Counsel for Unfair Employment-Related Discrimination Practices, which is part of the Civil Division of the U.S. Department of Justice.
AVAILABILITY OF FORMS I-9 IN FOREIGN LANGUAGES
The Form I-9 is available in English and, for employers and employees in Puerto Rico, Spanish. The Spanish language version must not be used outside of Puerto Rico.
EMPLOYEE’S RESPONSIBILITY REGARDING FORM I-9
A new employee must complete Section 1 of a Form I-9 no later than close of business on his/her first day of work. The employee’s signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.
EMPLOYER’S RESPONSIBILITY REGARDING FORM I-9
The employer is responsible ensuring completion of the entire form. No later than close of business on the employee’s third day of employment services, the employer must complete section 2 of the Form I-9. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility. The employer may accept any List A document, establishing both identity and work eligibility, or combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present (the documentation presented is not required to substantiate information provided in Section 1). The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them. Requesting more or different documentation than the minimum necessary to meet this requirement may constitute an unfair immigration-related employment practice. If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.
QUESTIONS ABOUT GENUINENESS OF DOCUMENTS
Employers are not required to be document experts. In reviewing the genuineness of the documents presented by employees, employers are held to a reasonableness standard. Since no employer which is not participating in one of USCIS' employment verification pilots has access to receive confirmation of information contained in a document presented by an employee to demonstrate employment eligibility, it may happen that an employer will accept a document that is not in fact genuine – or is genuine but does not belong to the person who presented it. Such an employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it. An employer who receives a document that appears not to be genuine may request assistance from the nearest USCIS field office or contact the Office of Business Liaison.
DISCOVERING UNAUTHORIZED EMPLOYEES
It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I-9 purposes is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employer’s determination may be referred to an USCIS field office for assistance).
DISCOVERING FALSE DOCUMENTATION
False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.
PHOTOCOPIES OF DOCUMENTS
There are two separate and unrelated photocopy issues in the employment eligibility verification process. First is whether an employer may accept photocopies of identity or employment eligibility documents to fulfill I-9 requirements. The answer is that only original documents (not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority) are satisfactory, with the single exception of a certified photocopy of a birth certificate. Second is whether the employer may or must attach photocopies of documentation submitted to satisfy Form I-9 requirements to the employee’s Form I-9. The answer is that this is permissible, but not required. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.
The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence in the U.S. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire. Starting with the “pink” version of the Resident Alien Card (the “white” version does not bear an expiration date), and including the new technology Permanent Resident Cards, these documents are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment. Expiration dates do not affect current employment, since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents).
Note: Even if unexpired, “green cards” must appear genuine and establish identity of the cardholder.
SOCIAL SECURITY CARD ISSUES
The Social Security Administration (SSA) currently issues SSA numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S.. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted SSA cards that are undistinguishable from those issued to U.S. citizens. Aliens who present proof of temporary work authorization are issued SSA cards bearing the restriction Valid only with USCIS Authorization. SSA cards that are restricted in this way are not acceptable to satisfy the Form I-9 requirements.
Note: SSA cards annotated Not Valid for Employment were issued at one time to aliens who were not authorized to work in the U.S.. SSA at this time does not issue SSA numbers or cards to such aliens, who occasionally must obtain Individual Taxpayer Identification Numbers (ITINs) for certain purposes such as reporting unearned income (interest, investment income, royalties, scholarships, etc.) to the U.S. government for tax purposes. An ITIN is never acceptable for employment eligibility verification purposes.
Note also: It sometimes happens that an individual who satisfies I-9 requirements subsequently presents a restricted SSA card for payroll administration purposes (consistent with advice from SSA and IRS). Employers need not necessarily be concerned about this, since it is not unusual for an alien who is issued a restricted SSA card to proceed to permanent residence or even U.S. citizenship without applying to SSA to have the initial restrictions removed.
RETENTION OF FORMS I-9
All of an employer’s current employees (unless exempt) must have Forms I-9 on file. A retention date can only be determined at the time an employee is terminated. It is determined by calculating and comparing two dates. To calculate date A, the employer should add three years to the hire date. To calculate date B, the employer should add one year to the termination date. Whichever of the two dates is later in time is the date until which that employee’s form I-9 must remain in the employer’s employment eligibility verification files.
OFFICIAL INSPECTION OF I-9 RECORDS
Upon request, all Forms I-9 subject to the retention requirement must be made available in their original form or on microfilm or microfiche to an authorized official of the USCIS, Department of Labor, and/or the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices. The official will give employers at least 3 days advance notice before the inspection. Original documents (as opposed to photocopies) may be requested.
FORM I-9 REQUIREMENTS OF NEW OWNERS OF EXISTING BUSINESSES
In a case where a new owner of a business is a successor in interest, having acquired an existing business, the new employer may keep the acquired employer’s I-9 records rather than complete new Forms I-9 on employees who were also employees of the acquired employer. However, since the new employer would be responsible for any errors, omissions or deficiencies in the acquired records, it may choose to protect itself by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employee’s original Form I-9.
It is not unusual for a U.S. employer to hire a new employee who doesn’t physically come to that employer’s offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent.
Note: Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.
Some business entities contract with professional employer organizations (PEOs) to handle the personnel and benefits aspects of the business. This may include completion and retention of Forms I-9. Where the business entity and the PEO are "co employers," one Form I-9 need be completed between the co-employers for each employee who was simultaneously hired by the co-employers. A business entity and PEO will be deemed a "co-employer" if, among other things, an employer/employee relationship is said to exist between the business entity and PEO on the one hand, and the individual on the other, even though the employee is only performing one set of services for both co-employers. Therefore, the authority to hire or terminate employment would have to be in the hands of both the business entity and the PEO. Since both entities are employing the individual, however, both entities remain equally responsible for meeting the Form I-9 requirements and equally liable for any failures to meet those requirements. Accordingly, the employer is fully responsible for errors, omissions, and deficiencies in the PEO's processing.
The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) Immigration and Nationality Act (“INA”). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). The Act makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.
The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions with greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than 7% of the available Diversity Visas in any one year.
BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SAVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PHILIPPINES, PERU, POLAND, , SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
IMPORTANT: Effective March 8, 2005, the fees for Immigrant Visas and Diversity (“Green Card Lottery”) Visas have been increased. These changes were first published in the Federal Register on July 19, 2004 and are to ensure that the State Department recovers the actual costs associated with providing consular services overseas.
The fee for Diversity Visas has been increased from $100 (USD) to $375 (USD), and subsequently from $375 (USD) to $440 (USD). This initial increase was to enable the government to recover the full cost of running the Visa Lottery Program. Since all Diversity Visa applicants must also pay the Immigrant Visa fee, each Diversity applicant will be required to pay a total fee of $844 (USD).