Topics for Today s Presentation

Size: px

Start display at page:

Download "Topics for Today s Presentation"

Darlene Rice
6 years ago
Views:

Foreign National Interns & Immigration: Employment Eligibility and Compliance www.morganlewis.com Eric S.

com Topics for Today s Presentation When is immigration status an issue? Volunteer or Employee?

1 Foreign National Interns & Immigration: Employment Eligibility and Compliance Eric S. Bord Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC Phone: Topics for Today s Presentation When is immigration status an issue? Volunteer or Employee? How can I safely determine whether I have an immigration status issue with an intern? Typical I-9 situations for foreign national interns B-1/B-2 visitor status; visa waiver program F-1 Student visa J-1 Exchange visitor visa Employment Authorization Document Other nonimmigrant visas/status 2 1

2 Volunteer or Employee? If the person is on payroll, then an I-9 is required A W-2 at year s end means an I-9 now No I-9 requirement for a 1099 contractor If the person is a true volunteer, then no I-9 is required Payment of any kind to a foreign national volunteer may be unlawful, depending upon the individual s nonimmigrant status. Payment, even of a nominal bonus or honorarium, may trigger employment Not sure whether to treat as volunteer, contractor or employee? Outside the scope of this presentation Who Can We Employ As An Intern? Anyone who has open- market employment authorization U.S. citizen LPR Asylee/refugee Unexpired I-766 (employment authorization card) 4 2

3 Who Can We Employ As An Intern? F-1 student with curricular practical training (CPT) Requires an I-20 endorsed for CPT with your organization F-1 student with optional practical training (OPT) Requires an I-766 employment authorization card 5 Who Can We Employ As An Intern? J-1 exchange visitor Directly sponsored by your organization (trainee or intern) Summer work and travel program Must be paid; cannot volunteer Other nonimmigrant classifications for which you are the petitioning employer, including H-1B TN E-3 6 3

4 Who Can We Employ As An Intern? Deferred Action for Childhood Arrivals (DACA or DREAMers) They will have an EAD, but it may expire over the summer No official guidance from DHS on process for DACA EAD extensions General rule for EADs is that a valid EAD is required; a receipt for an extension is NOT evidence of employment authorization 7 Who Can We Employ As An Intern? Visitors B-1/B-2 Visa Visa waiver program Visitors may, observe, shadow, receive short-term training, etc., but they may not perform productive labor or receive wages or remuneration. 8 4

5 Who Can We Employ As An Intern? A foreign national on a nonimmigrant work visa when your organization is not the visa sponsor Another employer s H-1B, J-1, TN, L-1, etc. 9 Who Can We Employ As An Intern? So how do I know whether the person who wants to be a paid intern is a foreign national who presents a visa issue? Often the intern will volunteer the information Sometimes it only comes up at the time of the I-9 You can ask, if you do so properly and consistently 10 5

6 Asking About Immigration Upfront The following language is acceptable if asked of all job applicants: Are you legally authorized to work in the United States? Yes No; Will you now or in the future require the company s sponsorship for an immigration-related employment benefit (e.g., H-1B, work permit, green card, etc.)? Yes No Hiring decisions based on an applicant s need for immigration sponsorship are not considered discriminatory provided the policy is not applied in an inherently discriminatory manner (sponsorship only of certain nationalities). 11 What is an I-9 Form? The I-9 form is a U.S. government document that must be completed and retained for every employee hired or rehired after November 6, 1986 The I-9 is used: To verify an employee s identity To verify an employee s authorization to work in the United States USCIS M-274 Handbook is a helpful resource 12 6

7 What Does IRCA Do? IRCA makes employers responsible for two determinations for all employees hired since November 6, 1986: Identity Eligibility for work IRCA prohibits knowingly hiring someone who is unauthorized to work IRCA also prohibits unfair immigration-related employment practices 13 For Whom Must an I-9 Be Completed? All Newly-Hired U.S. employees Full-time or part-time Hired since November 6, 1986 NOT independent contractors NOT contract agency employees NOT Volunteers 14 7

Form Employer should ensure that Section 1 is completed correctly Section 1 may be

8 A Look at the Latest Version of the I-9 15 I-9 Basics: Section 1 Timing On or before the first day of work: Employee must complete and sign Section 1 of I-9 Form Employer should ensure that Section 1 is completed correctly Section 1 may be completed before the first day of work, but that may not be required of the employee 16 8

9 A Look at the Latest Version of the I-9 17 I-9 Basics: Section 2 Timing Within three business days Employee must present acceptable original documents Employer must inspect original documents presented Employer must complete and sign Section 2 of I-9 Form If hired on Monday, then complete by COB Thursday. Individual is allowed to work during the three business day period 18 9

10 Students and Scholars F-1 students generally have work authorization For 20 hours of on campus work during school year For full-time on campus work during vacations No EAD for this work authorization, incident to status F-1 students also can obtain authorization For OPT For CPT EAD for OPT, but not for CPT Typical documents foreign passport, I-20, I J-1 Exchange Visitors J-1 that you have sponsored: Typical documents foreign passport, I-94, DS-2019 J-1 students may work on-campus 20 hours per week on campus on fellowship or assistantship No EAD Academic training following completion of studies 20 10

11 Completing the Form I-9: Some Basic Rules Do not request or require specific documents allow the employee to decide what acceptable documents to present. Do not use white-out. Mistakes can be crossed-out with a single line, corrected, initialed and dated. ESB 01/02/2013 Spanish version may only be used in Puerto Rico or as a translation tool. Never backdate signatures. Use current version of the Form I Expired or Unexpired Documents? No expired documents Must be valid when presented U.S. passport, permanent resident card, or List B identity document do not need to be reverified upon expiration 22 11

12 Restricted Social Security Cards Today, everyone with time-limited work authorization receives a restricted Social Security card Must see other evidence of employment authorization Not a valid List C document 23 Document Review The employer must review original unexpired documents Documents must appear facially valid They must reasonably appear to be genuine and to relate to the person presenting them Company policy (and required in some instances by E-Verify): Make clear photocopies of front and back of documents(s) presented and maintain copies with the Form I

13 Section 2: Pointers If an employee presents an unacceptable document: Return the document and ask the employee to present any other acceptable document or combination of documents Do not require or request specific documents. It is the employee s choice. Do not over-document by accepting or entering more than a single List A or a combination of a List B and a List C document. If the employee gives you multiple documents, then ask the employee to specify which you should use. 25 Section 2: Common Errors Over-documenting Omitting key information, e.g., issuing authority, expiration date Omitting date of hire in Certification Incorrect SSN issuing agency Incomplete signer details (title, printed name, full business address) Expired or unacceptable documents (restricted Social Security Card; hospital birth certificate) Document # is not necessarily the Alien or A# 26 13

14 Contact Information Thank You! Eric S. Bord Morgan, Lewis & Bockius LLP Washington, D.C. Phone:

Skeletons in the Closet: Dusting Off Form I 9 & E Verify Compliance

Skeletons in the Closet: Dusting Off Form I 9 & E Verify Compliance July 10, 2014 Avalyn C. Langemeier 713.625.9232 alangemeier@fosterquan.com Susan K. McConn 832.426.0315 smcconn@fosterquan.com Disclaimer