Form I9 and Immigration Basics for Employers Ken

Form I-9 and Immigration Basics for Employers Ken C. Gauvey Offit Kurman 301. 575. 0359 kgauvey@offitkurman. com

Agenda • • • The basics of Form I-9 procedures What does “Sponsorship” mean Temporary vs. Permanent sponsorship Timelines and costs involved Questions you can ask on applications

Form I-9 Basics • Every employee must have a Form I-9 completed if they started work after November 6, 1986 – Doesn’t matter how big the company is – Doesn’t matter if they are a U. S. citizen

Form I-9 Basics • Section 1 – Completed on day 1 by the employee • Section 2 – Completed within 3 days by the employer • Both sections are the responsibility of the Employer

Form I-9 Basics • Common Problems – Too much identification • This has been the focus of the most recent fines – Incomplete identification • Fill out completely

Form I-9 Basics • To attach or not to attach documents – Attach unless there is a reason not to – All or none

Common Errors 7 © 2010 Offit Kurman, PA. All Rights Reserved.

Common Errors 8 © 2010 Offit Kurman, PA. All Rights Reserved.

Form I-9 Basics • Retaining Form I-9 – 3 years after hire, OR – 1 year after termination – Whichever is later Ex. 1 – Hire A and fire A 6 months later. • Must retain the Form I-9 for 30 more months Ex. 2 – Hire B and B quits 5 years later • Must retain the Form I-9 for 12 months

Form I-9 Basics • Storage – 3 Binders • Binder A: All current employees • Binder B: All terminated employees whose Form I 9 you must continue to store • Binder C: Copies of all Form I-9 s in Binders A and B.

Form I-9 Basics • Why 3 Binders: – If audited or raided, ICE will take Binders A and B. – By keeping Binder C, you retain a copy to challenge any finding of ICE resulting in fines

Audits • Frequency – Once a year for internal audits – Every few years for external audits • Making Changes – Be bold about them – Attach memos

Sponsorship • Typically, means that employee is authorized to work but needs employer support to retain work authorization

Sponsorship • Typical Categories of Aliens Seeking Sponsorship – H-1 B – Most common – Green Card – OPT – Student

Sponsorship • Requires employer to show that there are no U. S. citizens willing and able to take the job • Temporary work authorization has a lesser standard • Permanent work authorization, green card, has a greater standard

Temporary • H-1 B – Most Common – Professional workers • Others Include – L 1 • Intercompany Transfers – TN • NAFTA : Visa for Canadian or Mexican workers – TPS • Temporary Protected Status

H-1 B Procedures • New H-1 B vs. H-1 B Transfer – New H-1 B is usually where someone applies from overseas or is here on a student visa and wants to stay after graduation – Transfer is where someone is here on H-1 B currently and wants to move to new employer doing substantially the same work

H-1 B Procedures • Prevailing Wage – Department of Labor (60 days) – Survey • Internal Posting • Labor Condition Application (LCA)

H-1 B Procedures • LCA – Attest • Will pay the employee at least the minimum wage • Employment will not adversely affect the working conditions of other similarly situated workers • No strikes, lockouts or work stoppages in effect • LCA filed electronically – Response is usually within 5 -7 business days

H-1 B Procedures • I-129 Petition – Filed with USCIS – For Transfers – Upon filing the employee can begin working for the new employer • Do not have to wait for it to be approved – For New H-1 B’s you have to wait for approval

H-1 B Procedures • Public Access File – LCA (copy to be given to employee as well) – Documentation of Wage Rate – Full explanation of the system used to set the actual wage – Copy of prevailing wage document – Copy of posting notification – Summary of benefits offered

H-1 B • Audits are more common than ever before – Make sure your public access file is current – Make sure your front desk people knows who to refer auditors to – Contact your attorney if any problems arise

Permanent Employment • EB Category of Visas – EB-1 • First Preference Priority Workers – Multinational executives – Outstanding professors and researchers – Persons of extraordinary ability

Permanent Employment • EB-2 – Professionals with advanced degrees – Persons with exceptional ability • EB-2 NIW – Persons with exceptional ability where it is in the national interest to have them work in the U. S.

Permanent Employment • EB-3 – Skilled workers • EB-4 – Special Immigrants • EB-5 – Investors

PERM • Necessary for EB-2 and EB-3 (Not EB-2 NIW) • Requires actual recruitment to demonstrate no minimally qualified U. S. workers are available for the job – Minimally qualified • Not most qualified

PERM • 60 days of recruitment – Mandatory • 2 Sunday Advertisement in a newspaper of general circulation – Baltimore Sun, Washington Post • State Job Posting

PERM Must also include 3 of the following – Posting on company website – Posting on other website – Employee referral program – Job fairs – Campus placement offices – Trade or professional organizations – Local or ethnic newspapers – Radio or television advertisements – On-campus recruiting – Private employment firms

PERM • Resumes – Must interview those applicants who meet the minimum qualifications – It is key to make sure the job description is as specific as possible at the beginning to ensure you only interview the actually qualifying candidates

PERM • Job Descriptions – Examples: A. Ability to design and create websites B. Knowledge of Cold Fusion v. 9, Dreamweaver CS 5, Photoshop CS 5 required Example A is generic Example B provides specifics that can be used to disqualify candidates

Procedure • File PERM Application – 120 days after starting • 60 days for prevailing wage • 60 days of recruitment • Employer files a petition to sponsor the employee (I-140) • Employee files application for a green card (I-485)

Procedure • EB-1 and EB-2 can generally file I-140 and I-485 at the same time – Other categories have to wait for the I-140 to be approved.

Visa Bulletin EB-1 C EB-2 C (exceptions) EB-3 01 Jun 04 +

Costs – H-1 B • H-1 B New or Transfer – I-129 • $320 – Training and Education Fee • $1, 500 – Anti-Fraud • $500 – Attorneys Fees – Renewals just require the I-129 Fee

Costs – Permanent • PERM – Recruitment costs – Attorney fees – All costs must be carried by the employer • I-140 – $475 plus attorneys fees • I-485 – $1, 010 plus attorneys fees

Application Questions • Unwilling to Sponsor – Are you a U. S. Citizen, permanent resident alien, temporary resident alien, applicant for temporary resident alien status, refugee, or asylee? • Yes or No answer for entire question

Application Questions • Willing to sponsor – Are you currently authorized to work in the United States? • If Yes, then no further inquiry necessary • If No, then the employer may inquire further

Questions • Future Webinars – August 18: Immigration Options for Healthcare Professionals – September 22: EB-5 Foreign Investors – October 20: Immigration and the Green Industry – November 24: Immigration options for Biotech Researchers – December 15: Proposed H-1 B Changes Issued by the DOL (the proposed changes are being issued in November)