As an employer, you may require the services of a foreign national to work at your company or business. If the individual is already a permanent resident (green card holder), you may hire that individual, but you must comply with the employment verification requirements.

If the alien is not already a permanent resident, you will need to file a petition so that the individual may obtain the appropriate immigrant or nonimmigrant classification.  You may chose to file an immigrant petition (permanent) or a nonimmigrant petition (temporary) on behalf of that employee. The links to the left provide information on how to petition and the different eligibility categories.

Employees

No alien may accept employment in the United States unless they have been authorized to do so. Some aliens, such as those who have been admitted as permanent residents, granted asylum or refugee status, or admitted in work-related nonimmigrant classifications, may have employment authorization as a direct result of their immigration status. Other aliens may need to apply individually for employment authorization.

There are many ways in which a person may be able to work in the United States. You may seek an immigration classification that permits you to live and work in the United States permanently or temporarily. In most instances, your employer or potential employer must petition for you. In the links to your left, you will find more information about coming to the United States to work temporarily or permanently and the many different eligibility categories for working in the United States.

U.S. Federal Tax Information

Employers who employ foreign workers may be subject to special U.S. Tax withholding rules.

Aliens employed in the U.S. may have a U.S. tax obligation.  Please see the Internal Revenue Service (IRS) for more information.

• Taxation of Resident Aliens
• Taxation of Non Resident Aliens

Additional Information

• General employer information:  1-800-357-2099

Temporary (Nonimmigrant) Worker

A temporary worker is an individual seeking to enter the United States temporarily for a specific purpose. Nonimmigrants enter the United States for a temporary period of time, and once in the United States, are restricted to the activity or reason for which their nonimmigrant visa was issued.

Permanent (Immigrant) Worker

A permanent worker is an individual who is authorized to live and work permanently in the United States.

Students and Exchange Visitors

Students and exchange visitors may, under certain circumstances, be allowed to work in the United States. They must obtain permission from an authorized official at their school. The authorized official is known as a Designed School Official (DSO) for students and the Responsible Officer (RO) for exchange visitors.

Information for Employers & Employees

Employers must verify that an individual whom they plan to employ or continue to employ in the United States is authorized to accept employment in the United States. Individuals, such as those who have been admitted as permanent residents, granted asylum or refugee status, or admitted in work-related nonimmigrant classifications, may have employment authorization as a direct result of their immigration status. Other aliens may need to apply individually for employment authorization.

Temporary Visitors for Business

To visit the United States for business purposes you will need to obtain a visa as a temporary visitor for business (B-1 visa), unless you qualify for admission without a visa under the Visa Waiver Program. For more information on the topics above, select the category related to your situation to the left.

Contact the Immigration Attorneys at Garces & Grabler, P.C.

Get more immigration information

Last month, the Departments of State and Homeland Security announced that the new passport card was in full production.   The new card provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda.

While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer.  Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program.

The passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

For more information about working in the United States, visit our website at www.GarcesGrabler.com.

For immediate assistance with your immigration issues, call 1-866-951-2860 to schedule an appointment with an immigration attorney.

Do I need to complete a Form I-9 for everyone who applies for a job with my company?
No. You need to complete Form I-9 only for people you actually hire. For purposes of the I-9 rules, a person is “hired” when he or she begins to work for you for wages or other compensation.

I understand that I must complete a Form I-9 for anyone I hire to perform labor or services in return for wages or other remuneration. What is “remuneration”?
Remuneration is anything of value given in exchange for labor or services rendered by an employee, including food and lodging.

Can I fire an employee who fails to produce the required document(s) within three (3) business days?
Yes. You can 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, you 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.

What happens if I properly complete a Form I-9 and the ICE discovers that my employee is not actually authorized to work?
You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual. You will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien unless the government can prove you had actual knowledge of the unauthorized status of the employee.

What is my responsibility concerning the authenticity of document(s) presented to me?
You must examine the document(s) and, if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If a document does not reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it. You may contact your local ICE office for assistance. To get the address and telephone number of the ICE office nearest you.

May I accept a photocopy of a document presented by an employee?
No. Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate.

For more information about Immigration Law, visit our website at www.GarcesGrabler.com

For immediate assistance with your immigration needs, call 1-866-951-2860 to schedule an appointment with an immigration lawyer.

USCIS issues Employment Authorization Documents (EAD) in the following categories:

• EAD: This document proves you are allowed to work in the United States.
• Renewal EAD: You cannot file more than 120 days before your original employment authorization expires.
• Replacement EAD: This document replaces a lost, stolen, or mutilated EAD. A replacement EAD also replaces an EAD that was issued with incorrect information, such as a misspelled name.

What Does the Law Say?
The Immigration and Nationality Act is a law that governs the admission of all persons to the United States. For the part of the law about Employment Authorization Documents, please see INA § 274A. The Code of Federal Regulations [CFR] discusses the employment authorization responsibilities of both employers and employees at 8 CFR § 274a.

Who is Eligible?

• The specific categories that require an Employment Authorization Document include (but are not limited to) asylees and asylum seekers; refugees; students seeking particular types of employment; applicants to adjust to permanent residence status; people in or applying for temporary protected status; fiancés of American citizens; and dependents of foreign government officials. Please see Form I-765 (Application for Employment Authorization) for a complete list of the categories of people who must apply for an Employment Authorization Document to be able to work in the United States.
• If you are a U.S. citizen, you do not need an Employment Authorization Document.
• If you are a lawful permanent resident or a conditional permanent resident, you do not need an Employment Authorization Document. Your Alien Registration Card proves that you may work in the United States.
• If you are authorized to work for a specific employer, such as a foreign government, you do not need an Employment Authorization Document. Your passport and your Form I-94 (Arrival-Departure Record) proves that you may work in the United States. Please see 8 CFR 274a.12(b), which provides a full list of the categories of people who do not need to apply for an EAD.

How Do I Apply?
You may be eligible to file Form I-765 electronically. Please see our Introduction to E-Filing USCIS Forms for more information. The procedures for forms electronically filed with USCIS are different than described in the following paragraphs. If you are not eligible for electronic filing,you must file an Form I-765 (Application for Employment Authorization) by mail with the USCIS Regional Service Center that serves the area where you live. Please read the entire application carefully and submit the right documents, photos, and fee.

How Can I Check the Status of My Application?
Please see our information on checking the status of your application.

How Can I Appeal?
If your application for an Employment Authorization Document is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision to a higher authority. However, you may submit a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you may ask the office to reexamine or reconsider their decision. A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.

For assistance with filing these motions, contact the immigration lawyers at Garces & Grabler.

For more information about immigration law, visit our website at www.GarcesGrabler.com

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that effective April 3, 2009, all U.S. employers are required to use the revised Form I-9, Employment Eligibility Verification, (Rev. 02/02/09). The revision date can be found in the lower right-hand corner of the form.  The interim final rule, published Dec.17, 2008 in the Federal Register, revised the list of documents acceptable for the Employment Eligibility Verification (Form I-9) process.  Previous versions of Form I-9 may no longer be used.

Background

All employers, agricultural recruiters and referrers for a fee are required to verify the identity and employment authorization of each person they hire for employment in the United States. USCIS has revised Form I-9 to bring it into compliance with the governing statutes that require all documents presented during the Form I-9 process to be unexpired. Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

Questions and Answers

Q. Why is a revised Form I-9 being released?
A. The revised Form I-9 reflects changes made to the list of documents acceptable for Form I-9 in accordance with the interim final rule titled “Documents Acceptable for Employment Eligibility Verification ,” published in the Federal Register on Dec. 17, 2008. The rule furthers our ongoing effort to increase the security of the Form I-9 process.

Q. In January, USCIS announced a delay in this rule’s implementation in order to receive more comments and review the rule further.  What was the result of that process?
A. On Jan. 30, 2009, USCIS did announce a 60-day delay in the effective date of the Interim Final Rule, until April 3, 2009, in order to provide the opportunity for further review of the rule.  The comment period was reopened for 30 days (until March 4, 2009).  After consideration of the comments and review of the rule, we determined that the rule should take effect on April 3, 2009, as scheduled.  The comments will be further considered, and responded to, in a subsequent final rulemaking on this subject.

Q: What is the difference between the revised Form I-9 and the old one?
A: The biggest difference in the revised Form I-9 is that all documents presented during the Form I-9 process must be unexpired. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.

The following documents have been added or removed from the List of Approved Documents:
Two documents have been added to List A:

• A temporary I-551 printed notation on a machine-readable immigrant visa in addition to the foreign passport with a temporary I-551 stamp; and
• A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

Three documents were removed from List A:

• Form I-688, Temporary Resident Card;
• Form I-688A, Employment Authorization Card; and
• Form I-688B, Employment Authorization Card.

Q. Where can I obtain a copy of the revised Form I-9?
A. The revised Form I-9 can be downloaded, please see Related Links on the right of this page.  Employers who do not have computer access can order USCIS forms by calling our toll-free forms line at 1-800-870-3676.

Q: Has the Handbook for Employers (M-274) been updated?
A:  Yes.  The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) has been updated to reflect these revisions to the Form I-9 and is available for free, please see Related Links on the right of this page.

Q. Why can’t I present an expired document?
A. USCIS wants to ensure that documents presented for use in the Form I-9 process are valid and reliably establish both identity and employment authorization status. Expired documents may not demonstrate a valid status and are prone to tampering and fraudulent use. This change takes into account the limits placed on these documents by their issuing authorities. If a document does not contain an expiration date, such as a Social Security card, it is considered unexpired.

Q. Why is only one type of Employment Authorization Document left in List A?
A. Forms I-688, I-688A and I-688B are older employment authorization documents. These are no longer issued and have now expired.

Q. Section 1, Employee Information and Verification of the revised Form I-9, refers to a citizen or noncitizen national of the United States. Who is a noncitizen national?
A. Noncitizen nationals are persons born in American Samoa, certain former citizens of the formerTrust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad.
More information on U.S. noncitizen nationals can be found at the Department of State Certificates of Non-Citizen Nationality, please see “Related Links.”

Q: As an employer, may I accept documents that used to be on the Form I-9 but aren’t now?
A: No. Beginning April 3, 2009, employers may only accept documents on the “List of Acceptable Documents” on the revised Form I-9 (Rev. 02/02/09). When an employee must be reverified because employment authorization has expired, employers should ensure that they use the revised Form I-9 with its new List of Acceptable Documents. An employer may not reverify the employee by completing Section 3 – Updating and Reverification on a previous version of Form I-9.

Q: Are there any changes in the way the revised Form I-9 is completed?
A: No. The revised form should be completed exactly the same way as the old one. Employers should be mindful of changes to the types of documents that they may accept in Section 2 – Employer Review and Verification.