Employee Visa Options, Employer Liability Issues

Published on: 1/09/2008

Virginia and other U.S. employers seeking special expertise in their businesses would be well advised to take advantage of talent overseas. Work visas serve an important and widespread role across the U.S. economic sphere, perhaps most notably in the technology sector. The purpose of this article is to briefly inform Virginia employers of the non-immigrant worker visa options available for workforce development, and to highlight the current and pressing liability issues involved with such foreign workers and I-9 procedures.

Non-Immigrant Visa Options for Foreign Employees

Companies can bring skilled foreign nationals into the country as authorized workers under one of the following non-immigrant visa categories:

  • B - Business Visitor
    B-1 Visas are the most commonly-issued and tend to be the “easiest” to obtain. They are used for foreign nationals coming to the U.S. on limited business for up to one year with a 6-month status extension option. These individuals come as visitors without immigrant intent and may not be compensated for their trip nor gainfully employed in the U.S. Thus, they are typically in the U.S. to engage in business/commercial dealings such as negotiations, court proceedings, conferences/meetings, and training. The B-1 can be used as a temporary channel towards the pursuit of longer-term non-immigrant status.
  • E - Treaty Trader/Investor
    The E-1/E-2 visas are perhaps the most important non-immigrant categories to U.S. business. Certain countries (including most of Europe and some of Asia, South/Central America, and Africa) have treaty privileges with the U.S. Managerial/executive or specialized-skill employees of a foreign company can serve as a treaty trader or treaty investor when engaging in a significant amount of transactions with the U.S. E-visa seekers do not have to prove intention to return to their home country, so it can be a bridge to permanent U.S. immigration. Spouses and children can file under the same visa category as dependents, meaning the spouse is also eligible for U.S. employment. E-1/E-2 status is granted in 2-year increments with easily-obtained extensions.
  • L - Intracompany Transferee
    The L-1 visa is one of the more accommodating and favored options for temporary employment in the U.S. A managerial, executive, or specialized-knowledge foreign national employed for at least one year with an overseas company within the past 3 years can transfer to its U.S. affiliate to start up or join the related office. Managers and executives can stay for 7 years and use the L as a bridge to pursue permanent residency, while those with specialized knowledge can stay for 5 years. Start-up company employees can stay for one year and extend L status for two three-year periods thereafter (a 7-year maximum).
  • H and TN - Specialty Occupation
    Professional workers in specialty occupations or of exceptional ability can come to the U.S. with a bachelor's or equivalent degree to work typically for 3 years with a one-time extension option (a 6-year maximum). Those under H-status can have immigrant intent and later pursue permanent residency. There is an annual government “cap” (or quota) which restricts the number of H-1B visas issued. Canadians and Mexicans are eligible for TN status under the North American Free Trade Agreement.
  • J, O, P, and R - Other Workers
    A J-1 training visa can be used for employers who conduct a considerable amount of workforce training in the U.S. for more than 6 months. O-1 and P-1 visas apply to internationally-recognized foreign nationals who possess extraordinary abilities, such as entertainers, athletes, artists, and scientists. Religious workers can come to the U.S. for up to 5 years on an R-1 visa.

Immigration/Business Currently: I-9 Compliance and Heightened Employer Responsibility

Virginia and other U.S. employers today are subject to heightened accountability pressure relating to their employees' immigration status. The Department of Homeland Security (DHS) and its U.S. Immigration & Customs Enforcement Agency (ICE) have elevated worksite enforcement efforts significantly, and some states and municipalities are even putting forth efforts to enforce their own specialized requirements and sanctions where they feel the government has fallen short. Last year, ICE's company raids resulted in 863 criminal arrests and 4,077 arrests on civil charges. These figures have been increasing and are currently at an all-time high; 2002 ICE statistics show only 25 criminal and 485 civil arrests. As immigration reform remains a hot-button issue on Capitol Hill, your company will more than likely face increasingly strict standards of due diligence.

Since the Immigration Reform & Control Act (IRCA) of 1986, all employees in this country have been required to fill out an I-9 form within 3 days of hire and to present with it original documents to their employer proving their immigration status. The completed form will attest both that the employee is authorized to work in the U.S. and that the employer has deemed his/her documents to be “reasonable” (because employers are not necessarily document experts and would be hard pressed to identify counterfeit paperwork). Through this requirement, IRCA intends to curb illegal immigration through the imposition of civil and/or criminal consequences for those employers who “knowingly” hire and/or continue to employ unauthorized foreign workers. This “knowledge” includes both actual knowledge as well as constructive knowledge; so, employers are subject to penalties if they are plainly aware or have any reason to be aware that an employee is or becomes unauthorized. In order to avoid constructive knowledge liability, employers must be sure to properly complete and collect all I-9's and be sure that their workers are not only eligible for work as new hires, but that they remain authorized throughout their employment and are not working under expired status.

To help employers comply with I-9 procedure, USCIS released a long-awaited new Form I-9 in November 2007 which is now the standard and required version. The new I-9 reworked the List of Acceptable Documents required for new hires in order to prove identity and immigration status. However, due to important anti-discrimination policies, it remains that employers may not specify which documents they will accept from new hires. 

Therefore, it is now more important than ever for employers to practice strict compliance through such measures as internal I-9 audits and the use of auxiliary resources designed to assist in the verification process. Though employee provision of Social Security numbers is not mandatory, employers who participate in the U.S. Citizenship and Immigration Service (USCIS) federal and internet-based “E-Verify” (formerly “Basic Pilot”) program can require Social Security numbers in order to perform an immigration status check on all new hires. Some states already require the use of E-Verify among all employers, and Virginia may likely follow, as DHS has certainly shown intent to institute the program as a federal requirement. While E-Verify is limited in that it can not identify stolen/purchased Social Security numbers through such means as identity theft, it can detect invalid/counterfeit numbers. Most importantly for businesses, its use helps protect your company against charges for knowingly hiring unauthorized workers.


For more information, please contact the article authors  at Sands Anderson Marks & Miller, P.C.

Michael P. Kuhn (Attorney) MKuhn@SandsAnderson.com, (804)783-7233.
Aparna Bansal (Paralegal) ABansal@SandsAnderson.com, (804)783-7283.
 

This article was originally published in Beyond Virginia, the newsletter of the Division of International Trade of the Virginia Economic Development Partnership.