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Immigration Law: An Overview for Employers Patrick J. Hatch, Esq. Hatch Law Office Durham, NC.

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Presentation on theme: "Immigration Law: An Overview for Employers Patrick J. Hatch, Esq. Hatch Law Office Durham, NC."— Presentation transcript:

1 Immigration Law: An Overview for Employers Patrick J. Hatch, Esq. Hatch Law Office Durham, NC

2 Documents Verifying Employment Authorization for Aliens Form I-94 – Establishes identity and employment authorization for the petitioning employer ONLY Form I-94 – Establishes identity and employment authorization for the petitioning employer ONLY Form I-551 Alien Registration Card (“Green Card”) Form I-551 Alien Registration Card (“Green Card”) Employment Authorization Document (EAD) Employment Authorization Document (EAD)

3 Employment Authorization: 3 Classes 1. Aliens authorized to work incident to their immigration status; 1. Aliens authorized to work incident to their immigration status; 2. Aliens permitted to work for a specific employer incident to their status, without obtaining an EAD; and 2. Aliens permitted to work for a specific employer incident to their status, without obtaining an EAD; and 3. Aliens eligible for employment authorization, but who first must obtain an EAD from USCIS. 3. Aliens eligible for employment authorization, but who first must obtain an EAD from USCIS.

4 1. Employment Authorized Incident to Status Green Card holders Green Card holders Certain lawful temporary residents Certain lawful temporary residents Asylum applicants Asylum applicants Fiancé(e) visa holders Fiancé(e) visa holders TPS TPS V visa holders V visa holders Spouses of E and L visa holders Spouses of E and L visa holders

5 2. Employment Authorized With Specific Employer Based on Status Includes many nonimmigrants: H-1B, 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 visas Includes many nonimmigrants: H-1B, 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 visas Includes classes of foreign government officials and representatives of an international organization Includes classes of foreign government officials and representatives of an international organization I-94 card I-94 card

6 3. Employment Authorized Only With USCIS Documents Aliens adjusting status Aliens adjusting status Spouses and dependents of foreign government officials Spouses and dependents of foreign government officials Note: 90 day requirement Note: 90 day requirement

7 Student Employment Authorization: 2 categories 1. Post completion optional practical training (OPT) 1. Post completion optional practical training (OPT) 2. Curricular practical training (CPT) 2. Curricular practical training (CPT)

8 Which Immigration Laws Affect Employers? Immigration & Nationality Act of 1952, including later amendments Immigration & Nationality Act of 1952, including later amendments Immigration Reform and Control Act of 1986 Immigration Reform and Control Act of 1986 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 H-1B cap H-1B cap American Competitiveness in the 21 st Century Act of 2000 American Competitiveness in the 21 st Century Act of 2000 Legal Immigration and Family Equity Act of 2000 Legal Immigration and Family Equity Act of 2000

9 Immigration & Nationality Act of 1952 (INA) Verify employment eligibility and complete the I-9, Employment Eligibility Verification Form Verify employment eligibility and complete the I-9, Employment Eligibility Verification Form Record the type of EAD Record the type of EAD

10 Immigration Reform and Control Act of 1986 (IRCA) Sanctions against employers Sanctions against employers Prohibits discrimination Prohibits discrimination Legalization programs Legalization programs Systematic Alien Verification Entitlements (SAVE) Program Systematic Alien Verification Entitlements (SAVE) Program

11 Employer’s Dilemma: Opposing Interests Employers must ensure that all workers are authorized for employment. Employers must ensure that all workers are authorized for employment. However, employers are prohibited from considering foreign appearance, accent, or national origin in hiring practices. However, employers are prohibited from considering foreign appearance, accent, or national origin in hiring practices.

12 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Established 3-year and 10-year bars Established 3-year and 10-year bars

13 H-1B Visa Cap 65,000 annually 65,000 annually Apply on April 1 for October 1 start date Apply on April 1 for October 1 start date Cap is met on the first day Cap is met on the first day

14 American Competitiveness in the 21 st Century Act of 2000 (AC21) Portability Portability Requires: (1) lawful admission, (2) timely- filed, and (3) no unauthorized employment Requires: (1) lawful admission, (2) timely- filed, and (3) no unauthorized employment Problem for I-9 Problem for I-9

15 Legal Immigration and Family Equity Act of 2000 (LIFE Act) V K-3 and K-4 K-3 and K-4 Allowed for new groups of unlawful residents the ability to adjust status Allowed for new groups of unlawful residents the ability to adjust status

16 Who Are All These Undocumented Workers? Entered illegally Entered illegally Overstay Overstay Application was denied Application was denied

17 I-9 Process: Section 1 USCIS.GOV USCIS.GOV Section 1: Employee attests, under penalty of perjury, that he/she is a US citizen, lawful permanent resident, or alien authorized to work Section 1: Employee attests, under penalty of perjury, that he/she is a US citizen, lawful permanent resident, or alien authorized to work Completed at time of hire Completed at time of hire

18 I-9 Process: Section 2 Record examination Record examination Must accept documents if they appear “reasonably genuine” and relate to the person presenting the documents Must accept documents if they appear “reasonably genuine” and relate to the person presenting the documents Completed within 3 days of starting work Completed within 3 days of starting work Copies Copies

19 I-9 Process: What Do I Do With It? Keep on file for 3 years from the date of hire OR 1 year after the last day of work, whichever is later Keep on file for 3 years from the date of hire OR 1 year after the last day of work, whichever is later Electronic Electronic Exceptions: Independent contractors and sporadic domestic workers Exceptions: Independent contractors and sporadic domestic workers

20 Employer’s Obligations IRCA prohibits any person or entity from knowingly hiring or continuing to employ an unauthorized worker IRCA prohibits any person or entity from knowingly hiring or continuing to employ an unauthorized worker Actual or constructive knowledge Actual or constructive knowledge What is “constructive” knowledge? What is “constructive” knowledge? Re-verification required Re-verification required Can ICE investigate? Can ICE investigate?

21 “No-Match” Letters When? When? Check typos and talk with employees Check typos and talk with employees Fines? Fines? Good-faith defense Good-faith defense

22 Employee’s Rights Freedom from discriminatory practices Freedom from discriminatory practices Fines? Fines? Can’t consider date of EAD expiration Can’t consider date of EAD expiration Unauthorized workers Unauthorized workers Focus of questions Focus of questions

23 Penalties for Discrimination $275-$2,200 per individual discriminated against for the 1 st offense $275-$2,200 per individual discriminated against for the 1 st offense $2,200-$5,500 for the 2 nd offense $2,200-$5,500 for the 2 nd offense $3,300-11,000 for subsequent offenses $3,300-11,000 for subsequent offenses Fines are discretionary Fines are discretionary Office of Special Counsel or EEOC Office of Special Counsel or EEOC

24 Penalties for Employing Unauthorized Aliens Felony offense: (1) bring an illegal alien into the US, (2) transport to further their unlawful presence, (3) conceal, harbor, or shield an illegal alien from detection, or (4) encourage or induce an alien to illegally enter the country Felony offense: (1) bring an illegal alien into the US, (2) transport to further their unlawful presence, (3) conceal, harbor, or shield an illegal alien from detection, or (4) encourage or induce an alien to illegally enter the country 1 st Offense: $375 to $3,200 for each alien 1 st Offense: $375 to $3,200 for each alien 2 nd Offense: $3,200 to $6,500 for each alien 2 nd Offense: $3,200 to $6,500 for each alien Subsequent Offenses: $4,300 to $16,000 for each alien Subsequent Offenses: $4,300 to $16,000 for each alien

25 How to Ensure Employment Authorization E-Verify Program E-Verify Program IMAGE (ICE Mutual Agreement b/w Govt and ERs) IMAGE (ICE Mutual Agreement b/w Govt and ERs) SSN Verification Service SSN Verification Service SAVE (Systematic Alien Verification for Entitlements) SAVE (Systematic Alien Verification for Entitlements)

26 My Employee Was Illegal, But Now Is Legal: What Do I Do? Simple answer: Be consistent. Apply your procedure or policy consistently – terminate employees for lying or fraud, if that is what you usually do. Simple answer: Be consistent. Apply your procedure or policy consistently – terminate employees for lying or fraud, if that is what you usually do.

27 Questions? My Contact Info Thank You


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