Immigration Law Update for Employment, Corporate, and Business Lawyers
| Jurisdiction | Kansas,United States |
| Citation | Vol. 74 No. 9 Pg. 38-45 |
| Pages | 38-45 |
| Publication year | 2005 |
74 J. Kan. Bar Assn. 9, 6-8, 38-45 (2005). Immigration Law Update for Employment, Corporate, and Business Lawyers
74 J. Kan. Bar Assn. 9, 6-8, 38-45 (2005)
Introduction
What do employment, business, and corporate attorneys really need to know about the Gordian Knot(fn2) of immigration laws? Are there common malpractice pitfalls to be avoided? When is it time to call upon an immigration expert?
The authors offer this article as another in a multi-part series on the interface issues between immigration law and other areas of legal practice; specifically domestic law,(fn3) criminal law,(fn4) and business or corporate law.(fn5) Common myths are explored, along with an overview of opportunities for foreign workers and how recent changes in immigration law affect employers, with a final emphasis on the employer's obligation to comply with immigration laws.
Employment Immigration Myths
Myth 1: Using subcontractors shields employers from immigration compliance liability.
This is the wrong answer. This is also what Wal-Mart appeared to think before settling for $11 million for its cleaning contractor's failure to comply with immigration law. It is true that employers cannot verify employment eligibility of contractors through an I-9 process; at the same time, under current law, employers remain exposed to liability under a "should have known" standard for a contractor's failure to comply. Employers must take prudent steps to ascertain that their contractors understand and follow proper immigration verification procedures. The best way of doing so is by asking for written certifications from contractors. Reviewing contractors' immigration policies and procedures to ensure compliance may provide for additional protection.
Myth 2: When a foreigner marries a U.S. citizen, he or she is auto-matically authorized to stay and work in the United States.
This common myth has caught many an unsuspecting spouse and employer in the web of immigration problems - from being stopped at the border after returning from a souvenir hunting trip over the Canadian border to facing criminal charges for false claims to U.S. citizenship on I-9 employment documentation. In fact, marriage to a U.S. citizen often degrades a visitor's status from nonimmigrant to intending immigrant, and the proper change in authorized status can only be effected through timely application for change of status. Employers should not ask whether a person is married to a U.S. citizen; but instead, they should follow the I-9 procedures on ascertaining identity and employment authorization.
Myth 3: Small employers do not need to prepare I-9s.
While it is true that small employers are lesser targets than larger ones for the Department of Homeland Security, Department of Justice, competitors, and aggrieved workers, immigration law applies to all employers irrespective of size. This includes even natural persons. Recall the politicians who were stunned to see their careers come to an abrupt halt when it became clear that they did not follow immigration compliance procedures for "illegal alien" nannies hired to take care of their children!
Recent Changes and History of Immigration Law
What does it take to navigate the labyrinth of immigration laws? Helping corporate clients gain the benefit of the skills and talents in hiring foreign-born workers is the attorney's first concern.
The employment options are myriad and cut across all segments of education, experience, and skills. First, a brief overview.
Immigration law is entirely federal. The states become involved only at the periphery, for example, in connection with certain aspects of professional nonimmigrant (H-1B) visas and the labor certification process, both of which are mentioned below. The current federal scheme is governed by the Immigration and Nationality Act (INA),(fn6) its ever-evolving regulations, policy memoranda, and case law - along with various U.S. Department of Labor and Department of State regulations and policies.
Since its enactment, the INA has changed significantly.
Recent immigration reform has had two main thrusts: controlling illegal immigration while also increasing opportunities for legal immigration through employment and promoting family unity. The rise in illegal immigration since the early 1970s led to adoption of the Immigration Reform and Control Act (IRCA)(fn7) in 1986. The principal feature of this legislation was employment eligibility verification (the I-9 process), enforced by employer sanctions.
Four years later Congress turned its attention to legal immigration with the Immigration Act of 1990.(fn8) This increased total immigration under a three-track preference system, with the ceiling for employment-based immigration rising from 54,000 to 140,000 annually. In addition, the new law made significant changes to nonimmigrant categories.
In 1996 Congress returned to illegal immigration with the Illegal Immigration Reform and Immigrant Responsibility Act.(fn9) This law significantly tightened procedures for deportation (now called "removal") and asylum, placed severe bars to admissibility on those who overstay their time in the United States, and added restrictions on judicial review of decisions by the administrative agencies that oversee immigration.
However, mixed in with these tough measures were provisions that gave some relief to employers who had voiced concern about the requirements for verifying employment eligibility imposed by the IRCA. These provisions included a requirement to show intent in order to make a claim of discrimination based on an employer asking for more or different documents than required by the IRCA, a "good faith" defense for some verification violations, and a reduction in the number of documents that can be used for verification of eligibility to work in the United States.
Perhaps surprisingly, the events of Sept. 11 and the creation of the Department of Homeland Security on March 1, 2003, did not lead to significant changes - or even, as one might hope, to any simplification - in the laws governing U.S. immigration, but they have caused those laws to be enforced with much greater rigor and care. In addition, the organizational changes that were made in connection with setting up the Department of Homeland Security included disestablishment of the Immigration and Naturalization Service (INS), which had been the face of U.S. immigration law and policy for decades.
INS' functions were divided among three new agencies within the new department: U.S. Citizenship and Immigration Services (CIS), which decides eligibility for immigration benefits; U.S. Immigration and Customs Enforcement (ICE), which enforces customs and immigration laws within the United States; and U.S. Customs and Border Protection (CBP), which enforces customs, immigration, and agricultural laws at the border.
Immigrant vs. Nonimmigrant
Admission to the United States for business and other purposes is accomplished by two principal methods. The first is as an immigrant, that is, a person who comes to the United States intending to reside here permanently. Upon admission by means of an immigrant visa, such an individual becomes a permanent resident. This status permits unlimited employment by any U.S. employer and gives the foreign national the right to reside in the United States indefinitely. Permanent residence also provides a basis for pursuing citizenship by naturalization. Permanent resident status is evidenced by a Permanent Resident Card, Form I-551, popularly known as a "green card." While the green card is no longer green, it is an acceptable I-9, Column A document.
Many who are admitted to the United States have no intention of remaining indefinitely, or they have not met the requirements for immigrating. These individuals are admitted as nonimmigrants, persons who come to the United States on a temporary basis. There are multiple classes of nonimmigrants, with significant limitations - depending upon the person's classification - on the duration of stay, the purpose for which the person can be admitted, and employment. Nonimmigrant status is evidenced by an Arrival/Departure Record, Form I-94, a small white or green card issued at the time of admission. The I-94 shows the nonimmigrant class in which a person has been admitted and his or her required departure date.
Nonimmigrant classes for business purposes
The nonimmigrant classes that a business is most likely to encounter include the following:(fn10)
B-1 (Business visitor). This classification is primarily for foreign business persons coming to the United States to take orders, conduct negotiations, confer with colleagues, attend seminars, or engage in other similar activities. Approximately 4.6 million such visitors entered in fiscal year 2004 (FY04), either with B-1 visas or through the "visa waiver" program for certain countries with low rates of visa fraud.(fn11) The usual period of admission is the time the admitting CBP officer reasonably believes the activity will require. With a few rare exceptions, the B-1 classification does not permit work for remuneration for a U.S. employer.
F-1 (Student). This classification is for students enrolled in full-time courses of study in the United States. Approximately 650,000 students and family members were admitted to the United States in FY04.(fn12) Admission in F-1 status is for duration of status, that is, for as long as a student is validly enrolled on a full-time basis, in good standing, plus any authorized "practical training." Employment of F-1 students is limited and must be properly authorized. After completion of his or her academic program, an F-1 student can have up to one year of...
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