Immigration Myths Dispelled
by Josie Gonzalez
As an immigration attorney, I’ve come to realize that there are many myths among employers when it comes to immigration laws. I’ve gathered several of the most common ones for this article. It is my hope that this format will prove to be an easy overview.
Myth: We hired someone with a pending green card application and a work permit. He says all we have to do to ensure continued work authorization is to write a letter to USCIS confirming his employment.
Truth: New laws allow individuals who are far along in their green card application to change jobs, but: 1) the new job must be in the same or similar occupation as the job described in the pending application; 2) the last stage application must have been pending for 180 days; 3) it’s advisable that the second stage I-140 petition be approved. Bottom line: “It ain’t over till it’s over.” Until permanent residency is approved, there are many minefields that could derail the continued employment of these individuals.
Myth: Since there are no more H-1B numbers, we cannot hire any professional foreign workers.
Truth: New H-1B numbers for the current fiscal year (October 1, 2008 to September 30, 2009) have been exhausted, but other options for work eligibility include transfers of H-1Bs to different companies; H-1Bs employed with non-profits; Free Trade nationals from Canada, Mexico, Chile, Singapore, and Australia; J-1 visitor exchange/trainee programs; U.S. companies that are foreign owned and eligible for E-1/E-2 treaty trader visas; O-1s for outstanding aliens; L-1s for transfers from overseas affiliates; and graduates of U.S. colleges who have 12 months of practical training after graduation, or an additional 17 months if employed in certain STEM fields and working for an employer who enrolls in E-Verify, a program that requires screening all new hires via the government’s database. STEM fields are those in the sciences, technology, engineering, and mathematics.
Myth: My employee’s employment authorization document is expiring, but she has applied for her new card and I can use the receipt for the I-9 update and get an automatic 90-day extension.
Truth: A receipt indicating that an individual has applied for initial work authorization or for an extension of expiring work authorization is not acceptable proof of employment eligibility. In most instances, only the new EAD will suffice. However, a receipt for a replacement work authorization document resulting from, for example, a lost U.S. birth certificate, U.S. passport, or alien card can be recorded on an I-9 and provide for 90 days of work authorization pending receipt of the replacement document.
Note: Even though work authorization has expired, the immigration regulations provide an automatic 240 days of continued work authorization while certain employer-sponsored applications (e.g. H-1B, L-1, TN) for extensions of work permits are pending.
Myth: One can purchase a company and acquire the predecessor company’s I-9s and have no immigration liability, as long as one treats the employees as new hires.
Truth: If one accepts the I-9s, one inherits the sins of the predecessor. It is prudent to conduct a careful review of the I-9s, including interviewing hiring managers, to determine full compliance with immigration laws. If the company employs professional foreign nationals on work visas, it is crucial to determine if continued employment is permitted and to determine potential liabilities.
Myth: When someone is hired off site, notarized copies of I-9 documents can be emailed or faxed to Human Resources for I-9 completion.
Truth: The I-9 attestation requires one to certify that one has seen the original of the documents, compared the documents to the individual and established that the documents appear genuine and relate to the person. When hiring at remote sites with no H.R. office, one can designate an agent, not necessarily an employee, to assist with I-9 completion.
Myth: As a Human Resources Manager, I am not civilly or criminally liable when management has told me to complete I-9s and hire workers whose documents I know to be false.
Truth: The government has been filing charges against H.R. managers, translators, union stewards, executive officers and anyone else whom they can establish engaged in a variety of activities such as making false attestations on I-9s, knowingly accepting false documents, and conspiring or aiding and abetting the employment of unauthorized workers.
Myth: Once an individual is hired and an I-9 is completed, there is no need to pay any further attention to the immigration status of that employee.
Truth: The law requires not only that one refrain from knowingly hiring an unauthorized alien but also refrain from knowingly continuing to employ one. An employer must ensure that temporary work authorization documents are renewed and must terminate the employment of someone when it gains actual or constructive knowledge that an employee lacks the right to work. Actual knowledge can occur from a “true confession” where an employee admits to being undocumented and seeks your assistance; and constructive knowledge can be gained, based on the totality of the circumstances, where one gains information that there is a high probability that the person is unauthorized and fails to act responsibly.
Myth: My employee is currently authorized to work, as her attorney has verified that her permanent residence case is in the final stages and pending approval.
Truth: Only the I-9 List of Acceptable Documents can be accepted as verification of authorization to work. A letter from an attorney does not satisfy this requirement, nor does the mere filing of an immigration application provide work authorization.
Josie Gonzalez is the managing partner of Gonzalez & Harris, and has represented employers in all aspects of immigration law since 1978. Josie is a former criminal defense attorney, a member of the Board of Governors of the American Immigration Lawyers Association (AILA), and a nationally recognized expert on employer I-9 compliance/criminal and civil enforcement, business visas and labor certifications (PERM). She is a frequent guest speaker for trade, business, and Bar associations. Josie is ranked among the top four immigration attorneys in California by Chambers USA, in the top 5% by Southern California Super Lawyers (2004-present), and in the Best Lawyers in America (1996-present).
Reprinted with the permission of the Employers Group, as published in its November 2008 CA Employer newsletter. The Employers Group is a member of the National Association of Manufacturers (NAM) and the nation's largest and oldest nonprofit employer association dedicated to Human Resources management. Founded in 1896, it now represents close to 4,000 employer organizations throughout California. www.employersgroup.com