The two most important employment-related immigration laws are the Immigration Act of 1990 and the Immigration Reform and Control Act (IRCA) of 1986. The IRCA provided amnesty to some illegal immigrants and sanctioned employers who hired immigrants without work authorization.
Immigration Reform and Control Act
It is illegal to hire, recruit, or refer for a fee for work in the United States a person who is not authorized to work here. The employment of noncitizens, legal or illegal, is controversial.
I-9 Employment Verification
The U.S. Citizenship and Immigration Services (CIS) supplies Form I-9, Employment Eligibility Verification, which an employer must complete within three days of each employee’s hiring (and retain for three years). The employer must verify an individual’s identity and eligibility to work. The Immigration Reform and Control Act of 1986 prohibits “knowing” and “should have known” violations.
U.S. Immigration and Customs Enforcement (ICE) officers conduct random audits and act on written complaints that allege an employer’s violation. A determination of a violation is subject to administrative review at an employer’s request.
Violations include harboring an illegal immigrant and inducing illegal immigration. Employers’ defenses include good faith reliance on reasonably genuine-appearing documents is a defense. Substantial compliance with documentation requirements is a defense. An employer may argue that an assumed employee is an independent contractor and thus not subject to verification requirements.
Possibilities can be substantial. They include civil fines of up to $11,000 for each unauthorized employee and criminal penalties of increased fines and imprisonment. An employer may also be barred from future government contracts. The penalties may be affected by the size of an employer’s business, his or her cooperation with authorities, the seriousness of the violations, and previous transgressions.
An employer must evaluate applicants and employees, and their documents, in a fair and consistent manner. For example, greater proof cannot be asked of some individuals and not others. Standards and procedures parallel those of Title VII of the Civil Rights Act of 1964.
The Immigration Act
Persons who immigrate to the United States to work include those with special skills, or “extraordinary ability.” To hire such individuals, an employer must petition the Citizenship and Immigration Services. An immigrant employee’s ability to stay in the United States and to switch jobs here is limited.
I-551 Alien Registration Receipts
An employer may hire a noncitizen who (a) is a lawful permanent resident (as proved by an I-551 Alien Registration Receipt, or “green card”) or (b) has a temporary Employment Authorization Document. To obtain a “green card” for an immigrant, an employer must show that no American is qualified, willing, and able to take the job. The job must be advertised, its qualifications must be a business necessity, and its pay must be the prevailing wage (the average wage paid to similarly employed workers in the area). Nonimmigrant temporary workers are subject to a different system, which restricts their activities and length of stay in the United States.
B-1 Business Visitor Visa:Foreigners working for a foreign entity are allowed to visit the United States under a B-1 business visitor visa. This includes foreign nationals interested in visiting the United States for exploratory business purposes that do not involve receiving salary or payment. Persons admitted to the United States on a B-1 non-immigrant business visa are usually issued a 6-month stay. The maximum length of stay for visitor visa holders is 6 months. The immigration officer at the port of entry determines how long each visitor is allowed to stay in the country.
H-1B Visa: This visa enables professionals in “specialty occupations” to make a valuable contribution to the American economy. The H-1B visa is issued for up to three years but may be extended. This provides a maximum stay of six years. The H1-B visa holder can apply for a Green Card if a company wants to sponsor his/her application. The H-1B non-immigrant work visa may be issued to applicants seeking temporary work in a “specialty occupation” which requires the skills of a professional. “Specialty Occupations” include, for example, accounting, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, doctors, nurses, scientists, architects and lawyers. The petitions are submitted by employers based on their need for the non-U.S.-resident employee. The applicant may possess a bachelor’s degree or requisite experience to make up for the lack of a master’s degree.
H-2B Visa: This visa was created to allow people to come to the United States temporarily, mainly for non-agricultural jobs, for in which the U.S. workers are in short supply. Prospects are good that H-2B visas will remain available in future years. You qualify for an H-2B visa if you are coming to the United States to accept a temporary or seasonal non-agricultural job from an U.S. employer. You may apply if you have the correct background, skills or natural abilities needed by the employer. H-2B visas are targeted at skilled and unskilled workers.
O Visa: This visa classification consists of three visas: O-1, O-2, and O-3. The O-1 visa is for individuals with extraordinary abilities within science, arts, education, business, or athletics at the national or international level. Individuals with a record of extraordinary achievements within motion picture and/or television can also apply for the O-1 visa as long as the work performed is in an area of extraordinary achievements. O-2 visas are for supporting individuals of the O-1 visa holder, and the relationship between the O-1 and O-2 visa holder must have been long lasting. The spouse and unmarred children of O-1 visa holders are entitled to O-3 visas to come to the Unites States with the main O-1 visa holder.
The work performed must be temporary. The individual must possess skills that are extraordinary within the field of sciences, arts, education, business, athletics, or within the field of motion picture or television industry. Examples of proof of extraordinary ability can be contracts, awards, nominations, prices, published material, or similar documentation reflecting the nature of the individual’s achievement.
P Visa: This visa is a non-immigrant visa allowing certain individuals to work temporarily in the United States. The P visa consists of four classifications: P-1, P-2, P-3, and P-4. The P visa classification covers aliens that are internationally recognized athletes, artists or entertainers. The spouse and unmarried children of the P visa holder may also accompany the P visa holder to the United States during his or her duration of stay. The P-1 visa may be issued to an individual or to a team /group. The P visa allows for individuals that are part of a team or entertainment group to come to the United States and perform temporarily. Other classifications under the P visa cover individuals who perform, teach, or coach under culturally unique programs.
R-1 Visa: The U. S. government issues visas to individuals who are members of legitimate religious organizations so they can live and work legally in the United States for a specific period of time. These visas are called R-1 Religious Worker visas. R-1 visas are made available to members of the clergy and also to key employees of religious organizations. R-1 visas can be obtained if the applicant has been a member of a legitimate religious denomination for at least 2 years. R-2 visas can be obtained for accompanying relatives of the main applicant (R-1 visa holder).
TN Visa: This is a temporary work visas available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA), a citizen of a NAFTA country may work in a professional occupation in another NAFTA country, as long as the applicant meets certain requirements. The spouse and unmarried minor children of the principal applicant are entitled to the derivative status (called TD visa), but they are unable to accept employment in the United States.
F-1 Student Visa: The United States welcomes foreign students to American language schools, high schools, universities and other institutions of higher education. Students on F-1 visas may accept employment in the U.S. as a part of their practical training by obtaining an Employment Authorization Document. An applicant for a student visa must come to the United States to pursue an academic program in an institution recognized by the United States government. The alien must have a valid educational purpose for coming to the United States. The student can stay in the United States for as long as he/she is enrolled in school.
Green Card Lottery
The United States Government issues 55,000 permanent resident cards (Green Cards) every year through the Diversity Immigrant Visa Program, commonly known as the Green Card Lottery. Applicants are selected randomly by a computer-generated drawing. If selected, the main applicant, spouse and all unmarried children under 21 years of age will have a chance to apply for permanent resident status in the United States. It is a misconception to believe that “winning” the Green Card Lottery automatically grants the selected applicant a Green Card or United States Citizenship. There are several additional forms and documents that must be submitted and approved by the U.S. government before the applicant receives permanent residence in the United States.
United States citizens and non-U.S. citizens (including temporary visitors, legal and illegal immigrants) have the right to get married in the United States. There are no limitations for foreigners to get married in the United States. However, there are several steps that must be followed in order for the marriage to be valid. The marriage process differs sometimes substantially from state to state. One important prerequisite is the residency requirement, as some states require it and others do not. Other factors that must be taken into consideration include blood tests, ID requirement, types of legal marriages and age constraints. Once a marriage has taken place between a foreigner and U.S. citizen (or permanent resident), the foreign citizen can apply for a Green Card and later apply for U.S. citizenship. There are a number of different requirements that must be fulfilled before a Green Card is issued or U.S. citizenship can be obtained.
Individuals being persecuted in their home countries may apply for asylum, refugee status or temporary protected status in the United States. The fact that the person is suffering economical hardship is not considered a well-founded reason for applying for asylum or refugee status in the United States.
There is a difference between Asylum and Refugee Status. Individuals already physically present in the U.S. may apply for asylum, provided they meet the definition of a refugee and are not barred by law from applying for or being granted asylum. A refugee is a person unable or unwilling to return to his or her native country due to a well-founded fear of persecution or because the person’s life or freedom would be threatened. To apply for refugee status, the applicant must be physically located outside the United States.
Immigration Law Overview and Information
Federal immigration law determines whether a person is an alien, and associated legal rights, duties, and obligations of aliens in the United states. It also provides means by which certain aliens can become naturalized citizens with full rights of citizenship. Immigration law determines who may enter, how long they may stay and when they must leave.
The main legislation governing immigration is the Immigration and Nationality Act of 1952, (INA). The act has been amended numerous times, the most significant of which was the establishment of a new quota system in 1965. For INA purposes, an “alien” is any person who is not a citizen or a national of the United States. There are different categories of aliens: resident and nonresident, immigrant and nonimmigrant, documented and undocumented (“illegal”).
Immigration law is under the control of Congress. Presidential power is limited to policies on refugees. Courts will not become involved in immigration issues unless constitutional rights are involved.
Several laws have been passed to strengthen regulation of illegal immigration practices, such as hiring of illegal aliens and sham marriages. Congress enacted the Immigration Reform and Control Act (IRCA) of 1986, which toughened criminal sanctions for employers who hire illegal aliens, denied illegal aliens federally funded welfare benefits, and legitimized some aliens through an amnesty program. The Immigration Marriage Fraud Amendments of 1986 attmepts to curb sham marriages for the sole purpose of obtaining citizenship.
Immigration policies are implemented by granting or denying visas. There are two types of visas: immigrant and nonimmigrant. Nonimmigrant visas are primary issued to tourists and temporary business visitors. Only a few categories of non-immigrant visas allow their holders work in the United States. Immigrant visas permit their holders to stay in the United States permanently and ultimately to apply for citizenship. An alien who has an immigrant visa is permitted to work in the United States. Congress limits the overall number of immigrant visas, and many immigrant visas are also subject to per-country caps.
Attorneys who practice in the area of immigration law assist clients to a obtain a student visa, green card or United States citizenship. They also represent clients in corporate transfers, deportation, refugee, and asylum matters, and provide services in adopting children from foreign countries.