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One way to get a green card is through employment. There are 5 main categories of employment-based adjustment of status (EB-1 through EB-5) and some subcategories. We will go through these this week.

A with any of these categories, there are specific limits to how many can be issued per year. And there are specific backlogs for each category and for aliens from certain countries. To see how long the backlog is for each category, you can see the current Department of State Processing times at: www.attorneyrehan.com/links.htm.

EB-1: Priority Workers

The first employment based category is called Priority Workers. This group has 3 subcategories: 1)Aliens of extraordinary ability, 2)Outstanding professors or researchers, and 3)International managers and executives.

The main thing to remember about this category is that there is no labor certification requirement. So, it does not take as much time to process this type of case compared to a labor certification case.

Aliens of Extraordinary Ability

This subcategory requires the applicant to have extraordinary ability in the sciences, arts, education, business or athletics. The extraordinary ability subcategory does not require a specific job offer or employer, so long as the alien states that they will continue to work in the field of their extraordinary ability in the US. Extraordinary ability is defined as a “level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor.” There are about 10 types of evidence that can show a person has extraordinary ability. If you believe you may qualify for this category, you can contact our office.

Outstanding Researcher or Professor

This subcategory requires at least 3 years of research or teaching in the field and an offer of employment, along with international recognition in the field. Again as all the subcategories of EB-1, no labor certification is required.

International Managers and Executives

The alien must have worked for the sponsoring employer for at least 1 year out of the last 3 years in an executive or managerial position. Also, the US branch sponsor must have been in operation for at least one year. This category is very similar to the L-1 visa and is often used to get an L-1 visa holder a green card.

EB2: Aliens of Exceptional Ability or Advanced Degree Holders

For this category, usually a labor certification is required, though in some cases a national interest waiver is available.

Alien of Exceptional Ability

The key here is to show that the alien possesses a level of expertise above average in the field of arts (includes athletics), science, or business. There are 6 main types of evidence that can be used to show you qualify. If you believe you qualify, please call our office.

Advanced Degree Holder

The profession needs to be one in which a bachelor’s degree is the minimum requirement and the alien must have a degree above a bachelor’s degree in the field. You can substitute experience for the degree.

EB-3

This category has 3 subcategories: 1)Professionals with a bachelor’s degree, 2)Skilled workers, 3)Other workers. This category requires an approved labor certification and a job offer.

Professionals who hold a Bachelor’s Degree

This subcategory is available only to those who hold a US bachelor’s degree or its foreign equivalent. Unlike the H-1B nonimmigrant category, one is not able to substitution education with experience. A profession is a field which requires at a minimum a bachelor’s degree for entry. There is no requirement that the bachelor’s degree be in the field of offered employment.

Skilled Workers

For a person to qualify as a skilled worker, the position offered must require at least two years training and experience. The alien must possess the required background, but simply because the alien has two years of training and experience, does not make it a skilled position if it does not otherwise require two years of training and experience.

Other Workers

This category covers “unskilled labor,” defined as work that takes less than two years training or experience to perform. Because there is an annual limit of 10,000 visas in this subcategory, regardless of how many are available in the entire EB-3 category, there are extreme backlogs in visa numbers for this category.

EB-4: Special Immigrants

This category includes religious workers, certain employees of the US government abroad, and widows and widowers of US citizens.

EB-5: Immigrant Investors

Alien entrepreneurs whose new business will directly create 10 or more new jobs in the U.S. and invest approximately 1 million dollars can apply in this category. If the investment is made in a “targeted employment area” the amount can be half a million dollars.

Link to USCIS for Employment Based Petitions http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=7d316c0b4c3bf110VgnVCM1000004718190aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Most employers will never file a visa application for a worker. But the mistake many business owners make is assuming that no foreign employees means no need to worry about immigration laws. Under Immigration Reform and Control Act of 1986 (“IRCA”). Those provisions made every employer in the country a deputy of US Immigration and Customs Enforcement. Employers are required under that law to verify the identity and work authorization status of every employee of the business. The mechanism for compliance is the I-9 Employment Verification Form that every worker must complete on the day of hire or earlier. Failure to comply with IRCA’s I-9 rules can result in significant fines, loss of access to government contracts and highly negative publicity for a company. But despite the focus on immigration in the news, a large number of companies fail to comply with IRCA’s I-9 rules.

The I-9 process must start on the day an employee starts work. The employee must complete the first section of the I-9 form and must provide the supporting documents noted above within three days of the date of hire.

What is an I-9 Form?

The I-9 is a one page form employees complete verifying their identity as well as proving they are allowed to work in the United States. The form itself has three parts. Section 1 includes basic biographical information on the employee and also asks the employee to certify that he or she is a citizen, permanent resident or authorized to work under another status. The second section is completed by an employer who must verify what documents an employee presented to prove their identity and right to work and that the paperwork was completed in a timely manner. The third section is reserved for employers who must periodically update the I-9 Form if the worker is not authorized to permanently work in the US.

What documentation must an employee present along with an I-9 Form?

Employees must present documentation of identity and work authorization and can present documents from a pre-set list included in the I-9 Form’s instructions. Some documents, like a US passport or a permanent residency card, can prove both identity and that one is legal to work. Some documents, like a driver’s license, prove identity only and some documents, like a social security card (other than a card stating it is not valid for employment) prove work eligibility. Employers are not allowed to tell employees which documents from the pre-set list they must present. Occasionally, an employee is authorized to work, but they have not been issued a document on the list. In such a case, an immigration lawyer may be able to provide a legal memorandum for an employer documenting the authorization to work and that will normally insulate an employer from liability. In some of these cases, the worker is entitled to 90 days to get the documentation to the employer though there are occasional cases where more time is permitted.

Who must complete an I-9 Form?

IRCA requires all employers to have all employees hired after 1986 complete I-9 verification paperwork. Workers who are not hired do not need to complete I-9 Forms and employers who selectively choose who will and will not complete I-9s could face penalties under anti-discrimination rules. Volunteers are not subject to I-9 rules since they receive no “remuneration” for their services. Independent contractors are also not subject to the I-9 rules, but employers should note that if they contract work to companies they know use unauthorized workers, they could be held liable as well under IRCA. Persons transferring within a company are not required to complete an I-9 form, but the easiest practice is usually to complete a new I-9 anyway rather than having to document the I-9 was done previously. Employees rehired by a company need not complete a new I-9 as long as they resume work within three years of completing the initial form I-9. Also, it is not necessary to complete a new I-9 after:

• an employee completes paid or unpaid leave (such as for illness or a vacation),
• a temporary lay-off,
• a strike or labor dispute,
• gaps between seasonal employee

When must the I-9 Form be completed?

The I-9 process must start on the day an employee starts work. The employee must complete the first section of the I-9 form and must provide the supporting documents noted above within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together). While it is possible to require people to complete the I-9 form before the first day of employment, many immigration lawyers caution against this because the form does elicit information about one’s national origin and a decision not to hire a worker could trigger a discrimination claim.

To the extent an employer chooses to have I-9s completed before the date of hire, they should only be requested after a position has been offered and accepted and there should be a uniform policy applicable to all employees receiving an offer of employment having to complete the I-9 ahead of time.

Can an I-9 Form be completed electronically?

In October 2004, legislation was enacted that allows for the I-9 to be completed, signed and stored on a computer. In June 2006, regulations were issued implementing the new statute. The new rules sets standards for completing forms electronically and also for the scanning and storage of existing I-9 forms.

What are the I-9 recordkeeping requirements?

Employers must keep I-9 Forms for all current employees. For terminated employees, the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

Retaining copies of the supporting documents is voluntary, however. Employers can retain copies of documents and attach them to the completed I-9 Form. Immigration lawyers disagree over whether employers should or should not retain copies of supporting documents. Certainly maintaining documentation could provide a good faith defense for an employer in showing that it had reason to believe a worker was authorized even if the paperwork was not properly completed. IRCA compliance officers may also be suspicious of employers that don’t keep copies of documents. Of course, keeping documents also leaves a paper trail. Whatever a company decides, however, it is important that the policy be consistently applied. Keep all the documents or keep none of them.

What are the I-9 re-verification requirements?

If an employee is not a US citizen or lawful permanent resident, they are likely working based on a status with a defined end date. For these employees, the employer must note the expiration of their documents on the I-9 Form and then must pull their I-9 Form before the expiration date and re-verify that the worker’s status has been extended. Employers need to establish a reliable tickler systems to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

How do mergers, acquisitions and other major changes affect I-9 requirements?

While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed I-9s for an acquired company invalid. If the acquiring company does not assume all of the assets and liabilities, then the I-9s will likely not transfer. In a merger case where the acquiring entity is a successor in interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure that the acquired I-9s are in good shape. Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand. In any case, an immigration lawyer should be consulted in any merger, acquisition or divestiture to ensure that the transaction does not result in new immigration problems.

What are the IRCA anti-discrimination and document abuse rules?

While employers need to be diligent about complying with IRCA’s employment verification rules, they should not be so overzealous that they end up penalizing qualified workers. IRCA also has anti-discrimination rules that can result in an employer facing stiff sanctions. Employers of more than three employees are covered by the IRCA anti-discrimination rules (as opposed to the 15 or more employees required by Title VII of the Civil Rights Act). IRCA protects most US citizens, permanent residents, temporary residents or asylee/refugee from discrimination on the basis of national origin or citizenship status if the person is authorized to work. Aliens illegally in the US are not protected.

Under IRCA, employers may not refuse to hire someone because of their national origin or citizenship status and they may not discharge workers on those grounds either. The employer is also barred from requesting specific documents in completing an I-9 Form and cannot refuse to accept documents that appear genuine on their face. But note that an employer must be shown to have had the intent to discriminate.

Employers can separately be sanctioned based on legislation passed in 1990 if they request more or different documents than required by the I-9 rules. Employers originally were held strictly liable for violations under this category, but in 1996 legislation was passed requiring a showing that employers intended to discriminate.

What penalties does an employer face for I-9 violations?

Employers can face stiff penalties for IRCA violations that include substantial fines and debarment from government contracts. Penalties can be imposed for hiring unauthorized workers as well as simply for committing paperwork violations even if all workers are authorized to work. Fines for hiring unauthorized workers will amount to anywhere from $250 to $5,500 per worker depending on the prior history of violation. Employers can also be barred from competing for government contracts for a year if they knowingly hire or continue to employ unauthorized aliens. Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $100 penalty up to $1000 for each form. A missing form would automatically be assessed at $1000. An employer, for example, that had 100 employees and did not complete I-9 Forms might face a $100,000 fine. IRCA investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.

Employers should also be cautioned that knowingly accepting fraudulent documents from employees is a different kind of violation that can be criminally prosecuted under other immigration laws.

What are the best ways to prevent being prosecuted for I-9 violations?

Employers can minimize the chances for being found to have violated IRCA’s employment verification rules by undertaking several steps:

1. Conducting a preventative internal audit of the I-9 files to see if there is a pattern of violations requiring remediation. Such an audit should be conducted by, or under the close supervision of, an immigration lawyer familiar with IRCA.
2. Establishing a regular training program for human resource professionals regarding I-9 compliance rules. The training should be conducted by an attorney familiar with IRCA rules.
3. Establishing uniform company policies regarding I-9s. Should copies of documents be retained or not? What kinds of questions can be asked about national origin and citizenship status before the date of hire? Is their uniformity in terms of when the employment verification is commenced?
4. Establishing a re-verification tickler system to ensure I-9s are checked in a timely manner.
5. Centralizing the I-9 Form recordkeeping process.
6. Establish a process for human resource professionals to check quickly with counsel when there are any problems in the verification process.
7. Establish a backup system to ensure timely compliance with I-9 rules when a human resource professional is out of the office.