HR Management Guide to Foreign Workers by Dijlistic


									Human Resources Management Guide

Foreign workers
Employment based immigration is a complex process that may involve a number of government agencies within the Federal Department of Labor, the State Department of Labor, the Bureau of Citizenship and Immigrant Services (BCIS) and the Department of State. The Immigration and Nationality Act (INA) regulates the admission of foreign workers into the United States.

Foreign labor certification overview
The Department of Labor issues labor certifications for permanent and temporary employment under the following programs: • • • • • • Permanent Labor Certification H-1B Specialty (Professional) Workers H-1C Nurses in Disadvantaged Areas H-2A Temporary Labor Certification (Seasonal Agricultural) H-2B Temporary Labor Certification (Non-agricultural) D-1 Crewmembers Certification

Foreign labor certification programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Certification may be obtained in cases where it can be demonstrated that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment. Foreign labor certification programs are designed to assure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

Steps for foreign labor certification
Hiring foreign workers for employment in the U.S. normally requires approval from several government agencies. First, employers must seek labor certification through the U.S. Department of Labor (DOL). Once the application is certified (approved), the employer must petition the U.S. Citizenship and Immigration Services (CIS) for a visa. Approval by DOL does not guarantee a visa issuance. The Department of State (DOS) will issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must also establish that they are admissible to the U.S. under the provisions of the Immigration and Nationality Act (INA). The foreign labor certification process is the responsibility of the employer, not the employee; however, the employee can benefit

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Human Resources Management Guide from understanding these programs. The actual procedures depend on the nature of the visa being requested: Permanent, H-1B, H-1C, H-2A, H-2B, D-1. Although each foreign labor certification program is unique, there are similar requirements that the employer must complete prior to the issuance of a labor certification. In general, the employer will be required to complete these basic steps to obtain a labor certification: • • The employer must ensure that the position meets the qualifying criteria for the requested program. The employer must complete the ETA form designated for the requested program. This may include the form and any supporting documentation (e.g., job description, résumé of the applicant, etc.) The employer must ensure that the wage offered equals or exceeds the prevailing wage for the occupation in the area of intended employment. The employer must ensure that the compliance issues are completely understood upon receipt of a foreign labor certification. The completed ETA form is submitted to the designated Department of Labor office for the requested program (e.g., State Workforce Agency, regional office, or the national office). The employer is notified of the determination of the Department of Labor.





Form I-9, employment eligibility verification
“I-9” is short for Immigration and Nationality Act’s (INA) Form I-9, known as the “Employment Eligibility Verification” form. The I-9 is a way for employers to document the fact that they are hiring only persons who are authorized to work in the United States. Over time, the term “I-9 requirements” has come to describe the entire process of verifying worker eligibility as outlined in the INA. Every new employee must complete an I-9. While citizens and nationals of the U.S. are automatically eligible for employment, they too must present proof of employment eligibility and identity. Citizens of the U.S. include persons born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. Nationals of the U.S. include persons born in American Samoa, including Swains Island. On May 31, 2005, the Department of Homeland Security, U.S. Citizenship and Immigration Service, issued a revised I-9 form. This is not the updated form and instructions, which would include the

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Human Resources Management Guide new list of acceptable documentation and other changes, that industry has been anticipating the release of since early 2005. According to a USCIS press release dated June 21, 2005, employers may use I-9 forms with an edition date of either “(Rev. 5/31/05)Y,” “(Rev. 05/31/05)N,” or “(Rev. 11/21/91)N” in the lower right corner of the form. Please note the following changes to the Form I-9 process: • Form I-766 (Employment Authorization Document), although not listed on the 5/31/05 version of the Form I-9, is an acceptable List A document #10. Form I-151 is no longer an acceptable List A document #5. However, Form I-551 remains an acceptable List A document #5. The following documents have been removed from the list of acceptable identity and work authorization documents: Certificate of U.S. Citizenship (List A #2), Certificate of Naturalization (List A #3), Unexpired Reentry Permit (List A #8) and Unexpired Refugee Travel Document (List A #9).



Who must complete an I-9?
Every employer must have a Form I-9 in its files for each new employee, unless the employee was hired before November 7, 1986, and has been continuously employed by the same employer. Form I-9 need not be completed for those individuals: • • • Providing domestic services in a private household that are sporadic, irregular, or intermittent; Providing services for the employer as an independent contractor; and Providing services for the employer, under a contract (for example, through a temporary employment agency), subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor providing the employees is the employer for I-9 purposes.)

How to comply
To comply with INA’s I-9 requirements, employers must: • • • Have the employee sign the I-9. Examine the form to make sure it is properly completed and legible. Keep the I-9 form on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later.

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Human Resources Management Guide • Verify, on the I-9 form, that the employer has seen documents establishing identity and work authorization for all new employees, U.S. citizens and noncitizens alike. Reasonably assess the documents’ validity. Accept any valid documents presented by the employee.

• •

By complying with the verification requirements of the I-9 the employer demonstrates a “good faith” effort in not knowingly hiring an illegal alien. Employees may NOT ask for more documents than those required and may not demand to see specific documents, such as a “green card.” Employers should terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen, or destroyed documents), within three (3) business days of the date employment begins. However, the employer must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

I-9 retention
Unlike tax forms, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in their files for 3 years after the date of hire or 1 year after the date the employee’s employment is terminated, whichever is later, for all current employees, as well as terminated employees whose records remain within the retention period. Recruiters or referrers for a fee are required to retain I-9s for three years after the date of hire. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection. U.S. immigration law does not prescribe or proscribe storage of a private employer’s I-9 records in employee personnel files. As a practical matter, however, particularly if a large number of employees are involved, it may be difficult to extract records from individual personnel files in time to meet a 3-day deadline for production of I-9 records for official inspection.

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Human Resources Management Guide

Electronic storage of documents
The DHS allows electronic signing and storage of the filled I-9. The PDF version of the I-9 complies with the electronic form requirements of the rule. An interim rule permits employers to complete, sign, and store I-9 forms as long as they meet the standards set forth in the interim rule. An employer currently complying with 8 CFR 274.2 is not required to take any additional or different action to comply.

Genuineness of presented documents
Employers are not expected to be document experts. Employers are expected to accept documents that appear to be genuine and relate to the person presenting them. If a document does not appear on its face to be genuine or to relate to the person presenting it, the employer must not accept it. Employees must present original documents, with the exception of a certified copy of a birth certificate

Employees not authorized to work
An employer may learn that an employee whose documentation appeared to be in order is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable to provide satisfactory documentation, employment should be discontinued.

Discovering false documentation
Inevitably, an employer will accept a document that is not in fact genuine — or is genuine but does not belong to the person who presented it. Such an employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it. The employer may request assistance from the nearest Immigration field office or contact the Bureau of Citizenship and Immigration Services (BCIS) Office of Business Liaison. An employee who initially presented false documentation to gain employment may subsequently obtain proper work authorization and present documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employee’s services. However, an employer’s personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.

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Human Resources Management Guide

Photocopying documents
Employers may not accept photocopied documents for I-9 purposes; only original documents or a certified copy of a birth certificate are acceptable. It is permissible for an employer to attach photocopies of documentation to the employee’s Form I-9. If an employer does this, however, it must be consistently applied to every employee, without regard to citizenship or national origin and the documentation copied must be presented to government authorities that request to see I-9 forms.

Green cards
The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence. The “pink” version of the Resident Alien Card (the “white” version does not bear an expiration date), and the new technology Permanent Resident Cards are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment. Expiration dates do not affect current employment of persons who initially presented resident alien cards. Therefore, it is not necessary to reverify an I-9 of a person who presents a then-valid alien resident card even though the alien resident card has an expiration date.

Social Security numbers
The Social Security Administration (SSA) currently issues SSA numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted SSA cards that are undistinguishable from those issued to U.S. citizens. The SSA “Valid only with INS (or DHS) Authorization” cards are issued to aliens who present proof of temporary work authorization; these cards do not satisfy the Form I-9 requirements. The Social Security Administration (SSA) issues an SSA “Not Valid for Employment” card to aliens who have a valid non-work reason for needing a social security number (e.g., federal benefits, State public assistance benefits), but are not authorized to work in the U.S. Aliens who satisfy I-9 requirements have been known to present a restricted SSA card for payroll administration purposes (consistent with advice from SSA and IRS). In cases like this, the employer needs to encourage the individual to report the change in status to SSA immediately.

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Future expiration dates
Future expiration dates may appear on the Form I-9 or on the employment authorization documents provided for I-9 compliance. INS includes expiration dates even on documents issued to aliens with permanent work authorization. The existence of a future expiration date: • • • Does not preclude continuous employment authorization; Does not mean that subsequent employment authorization will not be granted; and Should not be considered in determining whether the alien is qualified for a particular position.

Consideration of a future employment authorization expiration date in determining whether an alien is qualified for a particular job may constitute employment discrimination.

Reverifying employment eligibility
When an employee’s work authorization expires, you must reverify his or her employment eligibility. Use Section 3 of the Form I-9 or, if Section 3 has already been used for a previous reverification or update, use a new Form I-9. When using a new Form I-9, write the employee’s name in Section 1, complete Section 3, and retain the new form with the original. The employee must present a document that shows either an extension of the employee’s initial employment authorization or new work authorization. If the employee cannot provide proof of current work authorization, that employee cannot continue to be employed. The employer must reverify on the Form I-9 not later than the date the employee’s work authorization expires.

Rehiring a former employee
When rehiring an employee who has previously completed a Form I-9, reverify on the employee’s original Form I-9 (or on a new Form I-9 if Section 3 of the original has already been used) if: • • Rehiring the employee within 3 years of the initial date of hire; and The employee’s previous grant of work authorization has expired but he or she is currently eligible to work on a different basis or under a new grant of work authorization than when the original Form I-9 was completed. Record the date of rehire; Record the document title, number, and expiration date, if any, of any document(s) presented;

To reverify, the employer must: • •

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Human Resources Management Guide • • Sign and date Section 3; and Write the employee’s name in Section 1, if reverifying on a new form.

If rehiring an employee who has previously completed a Form I-9, the employer may update the original Form I-9 or a new Form I-9 if: • • The employee is rehired within 3 years of the initial date of hire; and The employee is still eligible to work on the same basis as when the original Form I-9 was completed. Record the date of rehire; Sign and date Section 3; and Write the employee’s name in Section 1, if reverifying on a new form.

To update, the employer must: • • •

Employers always have the option of completing Sections 1 and 2 of a new Form I-9 instead of completing Section 3.

Remote hires
In cases where a U.S. employer hires a new employee who doesn’t physically come to that employer’s offices to complete paperwork, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountants, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent. Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.

Affirmative action
Affirmative action mandates that certain federal contractors take affirmative action to promote employment opportunities for persons from diverse backgrounds, including persons with disabilities. Affirmative action includes expanded outreach, recruitment, mentoring, training, management development, and other programs. Affirmative action should establish goals, not rigid quotas.

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