Immigration Law for Employers
All U.S. business owners are in some way affected by immigration law, whether securing H-1B visas for high-tech employees or checking the I-9 forms of migrant farm workers. This section provides resources for employers regarding verification of employment eligibility, visa programs for foreign workers, and other immigration law matters.
Employment Eligibility Verification
The federal government has always required that employers verify their employee's eligibility to work in the United States. The Department of Homeland Security (DHS) instituted new requirements regarding how this is to be accomplished and began strictly enforcing employment eligibility verification in recent years. As a result, employers must now be particularly diligent about meeting their reporting obligations.
Employers must complete I-9 eligibility forms within three days after hiring an employee. The employee provides their name, date of birth, address, and Social Security number, which is checked against national databases. Under the new regulations employers can now store I-9 forms electronically, check employment eligibility online, and learn what to do if the employee's information doesn't match the information provided by the government.
Although most issues are resolved within a week of submitting an online I-9, though in some cases the employee will need to submit additional information such as photographs and other documents that help establish identity or authorization for employment. If verification is impossible the employee must be terminated.
Obtaining an Alien Labor Certification
Employers that want to sponsor an employee for a green card must generally first apply for an alien labor certification on their behalf. Sponsoring employees for residency can be time consuming and procedurally complicated. Employers must establish that there is a shortage of qualified employees for the position they are seeking to fill prior to requesting residency for their worker.
The process for establishing a worker shortage is referred to as a PERM labor certification, or simply a labor certification. This process involves the employer advertising and interviewing eligible candidates for a position and demonstrating their inability to fill the position within a reasonable time before hiring the foreign national. Certain kinds of employment-based green cards or specific kinds of jobs are exempted from complying with the labor certification requirements. Workers with extraordinary abilities, those with advanced degrees, and other accomplished or wealthy immigrants may be eligible to avoid the labor certification requirements.
DHS, in partnership with the Social Security Administration (SSA), maintains a database of valid Social Security numbers and the names of the individuals associated with them. Employers may now use this system to electronically verify the employment eligibility of potential employees and, in some cases, are required to do so. Federal contractors and companies contracting with some state governments are required to use E-verify. State legislatures have increasingly passed laws requiring public and even private employers to use E-verify for all newly hired employees. If information entered does not match with the information in the DHS/SSA database the result is a "tenative nonconfirmation" (TNC) and both the employee and employer need to take steps to resolve the matter.