Immigration Law: The Top 4 Things Employers Need to Know

Contributing Author: Richard Hanus | USA Visa Counsel

For the past 25 + years, I’ve represented employers and individuals when it comes to practically every aspect of immigration law imaginable.   My employer/corporate clientele range in size from 10-1000+ employees, and provide goods and services across all industries.  Based on my experience, the following 4 immigration law topics address the most important questions employers face in today’s environment.

1. Basic Immigration Law Terminology: Company owners and their human resource managers should become familiar with basic terminology of U.S. immigration law.  A) First, U.S. citizens are individuals born in the U.S., or who have naturalized after first obtaining lawful permanent resident (“green card”) status.    B) Lawful permanent residents, or “green card” holders, are foreign nationals who reside and work in the U.S. without restriction, and other than voting or remaining outside the U.S. for extended periods, have essentially the same rights as U.S. citizens.  C) Non resident visa holders might be eligible to be employed in the U.S. if they are on the following visa types – L-1 (for intracompany transferees of international companies), H-1B (to fill professional positions mainly), TN (NAFTA Trade Visa professionals and technicians from Canada or Mexico), F-1 (international students with an Employment Authorization Document).  Speaking of an Employment Authorization Document (EAD), a prospective worker may possess a general EAD issued for one of dozens of reasons, including as mentioned, certain F-1 students, DACA recipients, refugees and pending applicants for permanent residence.
2. What is a Form I-9? Employers must complete and maintain Form I-9 documentation for employees on their workforce.   The form and instructions are fairly straightforward and employers are given a choice of the type of supporting documentation they can accept for their records.  With some exceptions, an employee will typically need to provide proof they are either a US citizen or lawful permanent resident OR be in possession of an appropriate work visa or Employment Authorization Document.     When an employer completes the details of the I-9 documentation as instructed, and relies in good faith on “facially legitimate” supporting documentation presented by the employee (even documents that turn out to be fraudulent), they will generally be in a safe position if faced with an I-9 audit by Department of Homeland Security’s Immigration and Custom Enforcement. An employer’s biggest exposure in an I-9 audit usually stems from an employer’s failure to complete an I-9 for each employee, failure to provide all required information on the I-9 OR to collect and correctly note the supporting documentation provided as specified on I-9 instructions’ lists of acceptable documentation.
3. “Sponsoring” an employee for temporary visa or green card status Employers do not have a ton to choose from when it comes to legal options to facilitate an employee’s legal status, whether on a temporary or permanent (green card) basis.  H-1B visas are among the most popular, and those are limited to filling professional type positions at the “prevailing wage” and with workers with a university degree or equivalent.  The annual supply of 85,000 of such visas run out almost as soon as they are released, with demand typically outnumbering supply by a 3 to 1 margin.  There is the L-1 visa option for managers, executives and specialized workers for international corporations, but the petitioned worker must have bene employed for at least one year overseas within the corporate umbrella. Most other temporary and permanent avenues involve a component of testing the labor market and proving the unavailability of U.S. workers to fill the position.  Exceptions to rule include foreign nationals of “extraordinary ability” in their respective field, employees of foreign national companies entering on investor or trade visas, professionals filling shortage positions” such as registered nurses and physical therapists and higher level employees within international companies.
4. Why are there 12 million undocumented in the U.S. ?  S. immigration laws are out of touch with the times, especially the needs of U.S. companies looking to add talented, diligent foreign nationals to their workforce, even at market wage.   Realistic laws simply do not exist to match up these types of employment opportunities with the millions of prospective foreign workers who’d give their right hand for the chance to live and work in the U.S.   What we are left with is a segment of our population who are drawn to the U.S. for a chance at economic prosperity through hard work, but with no legal mechanism to make it Kosher.

For the worker who resides in the U.S. without legal status and without an eligible family member to petition them, there is no “right way” or “line”.   Furthermore, one of the hardest and most common questions I have to answer is: how can I help legalize my amazingly talented, dedicated and hard working employee who happens to be undocumented?  In the vast majority of cases, my answer is: once the worker in question is in undocumented status, it is not possible. In this regard, our nation is sitting on a hugely valuable and ambitious pool of labor waiting for a legal process to be legislated.  From there, employees and their employers can come out of the shadows, and these workers can more formally and fully be added to our tax rolls.

Richard Hanus

USA Visa Counsel

Richard Hanus of the Law Offices of Richard Hanus has been representing individuals, families and businesses across the U.S. and globally with U.S. immigration law matters for close to 30 years.    His offices are in downtown Chicago, Elgin and Waukegan, Illinois and he can be contacted at 312-357-0033 or rhanus@usavisacounsel.com.   For more information visit:  www.usavisacounsel.com