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Employment Eligibility FAQ
Q: Do citizens and nationals of the U. S. need to prove to their employers that they are eligible to work?
A: Yes. While citizens and nationals of the U.S. are automatically eligible for employment, they too must present proof of employment eligibility and identity and complete an Employment Eligibility Verification form (Form I-9). 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.
Q: Does an employer need to complete a Form I-9 for everyone who applies for a job
with the company?
A: No. The employer needs to complete Form I-9 only for people who are actually hired. For purposes of the I-9 rules, a person is "hired" when he or she begins to work for wages or other compensation.
Q: I understand that an employer must complete a Form I-9 for anyone hired to perform labor or services in return for wages or other remuneration. What is "remuneration"?
A: Remuneration is anything of value given in exchange for labor or services rendered by an employee, including food and lodging.
Q: Can an employer fire an employee who fails to produce the required document(s) within three (3) business days?
A: Yes. An employer 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, 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.
Q: What happens if an employer properly completes a Form I-9, but the BICE discovers that the employee is not actually authorized to work?
A: The employer cannot be charged with a verification violation; however, the employer cannot knowingly continue to employ this individual. The employer will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien unless the government can prove that the employer had actual knowledge of the unauthorized status of the employee.
Q: What is the employer's responsibility concerning the authenticity of document(s)?
A: The employer must examine the document(s) and, if they reasonably appear on their face to be genuine and to relate to the person presenting them, the employer 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, the employer must not accept it.
Q: May the employer accept a photocopy of a document presented by an employee?
A: No. Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate.
Source: U.S. Citizenship and Immigration Services
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Employment Based Visas
Whether you are a business professional, entrepreneur, or investor seeking a visa, or you represent a U.S. corporation, university, or other organization that employs foreign nationals, you may need information on employment visas and related legal issues. Following is a discussion of the many types of employment-based visas, and their particular requirements.
Employment Based Immigrant Visas
There are many categories that encompass employment-based immigration. These visas are different than temporary employment-based nonimmigrant visas, and they require a complete understanding of U.S. immigration law. For example, an investor/employment creation visa includes two different types of investors, is numerically capped as to the number of visas issued each year, and is very specific in terms of the types and amount of investment required. Employment-based immigrant visas are based upon categories such as:
- Extraordinary Ability of Aliens
- Outstanding Researchers and Professionals
- Professional Talent
- Multinational Executives and Managers
- Investors and Employment Creation
Filing the appropriate visa application requires a firm understanding of the goals of both the foreign national employee and the business seeking to hire a foreign national. The unique facts of each situation will determine which visa to apply for and the necessary information and documentation that are required to be furnished by the USCIS.
United States' Employer's Compliance
Employment-Based Permanent Residence Petitions
If you have questions about employment-based immigration visas, or would like assistance with preparation and filing of an employment-based permanent residence petition, please contact our office.
From U.S. Citizenship and Immigration Services:
Exchange Visitor Visas
The Immigration and Nationality Act (INA) provides two nonimmigrant visa categories for persons to participate in exchange visitor programs in the United States. The "J" visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs, and the "Q" visa is for international cultural exchange programs designated by the U.S. Citizenship and Immigration Services (USCIS).
The "J" exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Participants include students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of traveling, observing, consulting, conducting research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.
The "Q" international cultural exchange program is for the purpose of providing practical training and employment, and the sharing of the history, culture, and traditions of the participant's home country in the United States.
BACKGROUND REQUIREMENTS
Financial Resources
Participants in the "J" exchange visitor program must have sufficient funds to cover all expenses, or funds must be provided by the sponsoring organization in the form of a scholarship or other stipend. "Q" exchange visitors will be paid by their employing sponsor at the same rate paid to local domestic workers similarly employed.
Scholastic Preparation
"J" exchange visitors must have sufficient scholastic preparation to participate in the designated program, including knowledge of the English language, or the exchange program must be designed to accommodate non-English speaking participants. The "Q" exchange visitor must be at least 18 years old and be able to communicate effectively about the cultural attributes of his or her country.
Medical Education and Training
Exchange visitors coming under the "J" program for graduate medical education or training must meet certain special requirements. These requirements include passing the Foreign Medical Graduate Examination in Medical Sciences, demonstrating competency in English, being automatically subject to the two-year foreign residence requirement (after completion of their program), and being subject to time limits on the duration of their program. Physicians coming to the United States on exchange visitor programs for the purpose of observation, consultation, teaching, or conducting research in which there is little or no patient care are not subject to the above requirements.
Forms and Petitions
Participants in the "J" program must present a Form DS-2019 Certificate of Eligibility for Exchange Visitor (J-1) Status prepared by a designated sponsoring organization.
Participants in the "Q" program must have the designated sponsoring organization file Form I-129, Petition for Nonimmigrant Worker, with the U.S. Citizenship and Immigration Services (USCIS).
Admission Through a U.S. Port of Entry
Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission. Also, the CBP, not the Department of State Consular Officer, determines the period for which the bearer of an exchange visitor visa is authorized to stay in the United States. At the port of entry, a CBP official stamps and endorses Form I-94, Record of Arrival-Departure, specifying the period of time that the alien is authorized to stay in the United States.
Prevention and The Removal Process
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