HRMN 408 Week 8: Considerations for HR Professionals

Foreign Workers

• Form I-9 Requirements

• E-Verify

• Work Visas Generally

• High-Tech H-1B Visas

• H-2B Visas

• TN Visas under NAFTA

• Workplace Protections

• Remedies Available to Undocumented Workers

CHAPTER 21

C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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Book: The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations Author: Charles Fleischer Date: 2017

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Foreign workers have long played a significant role in our workforce. Some claim that foreigners take positions from U.S. citizens. Others argue that they fill jobs U.S. workers either do not want or are not trained to do. Both perceptions are reflected in current law. On the one hand, employers face criminal penalties for knowingly hiring an undocumented alien. On the other hand, visa policies make it easier for high-tech employees such as computer programmers to work in the U.S.

With terrorism now firmly planted in our collective conscious- ness, rules and restrictions affecting foreign workers are bound to play an increasing role in the workplace.

FORM I-9 REQUIREMENTS It is illegal to knowingly hire, recruit, refer for a fee, or continue to employee persons who are not eligible to work in the United States. The knowingly qualification is not satisfied by staying ignorant. For these purposes, a don’t-ask-don’t-tell policy will not work.

Employers must check documents to establish the eligibility of every new employee (including U.S. citizens) to work in the U.S. It does not matter whether the employer knows to a moral certainty that the new employee is a U.S. citizen—the Form I-9 requirements must still be satisfied.

Form I-9 and accompanying instructions are available online from the U.S. Citizenship and Immigration Services (USCIS) of the U.S. Department of Homeland Security (DHS). USCIS also publishes a helpful guide, Handbook for Employers, Publication M-274 for com- pleting the form and complying with Form I-9 requirements.

Among other things, Form I-9 requires the employer to attest that it has reviewed documentation—original documentation, not photocopies—provided by the employee to establish his or her eli- gibility and that the documentation appears genuine. The employee must also attest to his or her eligibility to work here.

A variety of documents can establish eligibility to work. How- ever, in most cases it is up to the employee to choose which doc-

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uments (among those listed on Form I-9) to show the employer; the employer cannot specify the documents it wishes to see. If the exhibited document or documents appear to be genuine, eligibility to work is established. Form I-9 should then be completed and kept on file for at least one year after the employee leaves, but not less than three years after the employment began.

QUICK TIP It is good practice, though not required, to make a photocopy of any documents exhibited

by the employee to establish his or her eligibility to work. Note, however, that attaching a

photocopy of an exhibited document is not a substitute for filling out Form I-9 completely.

The verification process must be completed within three working days after the employee begins work. (For employees who are hired for three days or less, the entire verification process must be com- pleted on the first day of employment.) For employees whose initial eligibility to work here is only temporary, the employer must either reverify eligibility or terminate the employee upon expiration of the initial eligibility period.

In addition to criminal exposure, employers that fail to comply with Form I-9 requirements face civil liability. Several courts have ruled that an employer that uses undocumented workers can be sued by competitors under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). U.S. government contractors are also subject to debarment.

The U.S. Department of Justice’s Civil Rights Division has ruled that Forms I-9 can be used for employment eligibility verification only. The ruling was in response to an inquiry whether an employer could furnish copies of its Forms I-9 to an outside payroll service for payroll processing.

ALERT! Firing the employee or taking other adverse action against him or her solely on the basis

of a name or Social Security number (SSN) mismatch could be discriminatory.

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QUICK TIP The Social Security Administration (SSA) has several procedures available electroni-

cally for employers to verify SSNs. Employers must register with the SSA to use the

procedures.

E-VERIFY Congress created E-Verify as part of the Illegal Immigration Reform and Immigrant Responsibility Act. Operated by the DHS and the SSA, E-Verify is an Internet-based system for electronically verifying eligibility to work in the U.S. According to the DHS, E-Verify is fast, free, and easy to use, and it is the best way employers can ensure a legal workforce. (Some have questioned the accuracy of the data- bases that the system uses to check eligibility.) E-Verify is not a sub- stitute for any other procedures required by law, such as completing and maintaining Forms I-9 for every employee.

Employers wishing to use E-Verify must first register at the DHS’s website. The registration process includes agreeing to a lengthy memorandum of understanding (MOU) that, among other things, requires the employer to use E-Verify for all employees. The MOU contains procedures employers must follow when they receive a ten- tative nonconfirmation—the equivalent of a no-match letter (dis- cussed below).

A number of states have passed laws requiring private employers in their states to use E-Verify. Arizona was among the first. In 2011 the U.S. Supreme Court upheld Arizona’s law, ruling that it is not preempted by or otherwise inconsistent with federal law.

ALERT! Most U.S. government contractors are required to use E-Verify and to require their sub-

contractors to use the system as well. (See Chapter 22 for details.)

No-Match Letters The employee’s name and SSN shown on the Form W-2 (discussed in Chapter 7) must match the SSA’s records. When they do not, the

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SSA issues a no-match letter. Receipt of a no-match letter does not necessarily mean that the employee is in the country illegally or that he or she has falsified Internal Revenue Service (IRS) Form W-4 when hired. The mismatch could be the result of an employer error in recording the employee’s SSN on the W-2, an employee name change through marriage or divorce, or an error on the employee’s W-4. Of course, it could also be the result of the employee’s using someone else’s number or just making one up.

In 2007, U.S. Immigration and Customs Enforcement (ICE) issued regulations on how to respond to an SSA no-match letter and promised a safe harbor for employers that followed the regula- tions. In the face of litigation over their validity, ICE rescinded the regulations. The SSA also halted sending no-match letters. The SSA later resumed the practice, but now, when it sends a no-match letter, it also sends the employer an accompanying letter (available on the SSA’s website) advising employers how to deal with the situation.

WORK VISAS GENERALLY The immigration laws authorize a number of categories of nonim- migrant (temporary) work visas, including the following:

• B-1, for foreigners here on business for the benefit of, and on the payroll of, their foreign employers

• H-1B, for foreign professionals • H-2B, for foreign skilled and unskilled workers • L, for intracompany transferees • O, for foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics

• TN, for professionals who are citizens of Canada or Mexico

In addition to the above, there are a few other specialized categories, such as for students and trainees, persons participating in exchange programs, nurses, and seasonal workers in short supply. The H-1B, H-2B, and TN categories, discussed below, are the most significant for U.S. employers.

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Immediate family members of persons here on work visas qualify for derivative visas. However, a family member may not perform any work while here on a derivative visa.

HIGH-TECH H-1B VISAS An H-1B visa allows a foreign specialty worker (a person whose profession requires at least a bachelor’s degree or equivalent) to be employed in the U.S. for an initial three years, renewable for an additional three years. If the particular field of work also requires a license, then the worker must hold such a license as well. At the end of the renewal period, the worker must cease work and spend at least one year outside the U.S. before he or she is eligible for a new H-1B visa. H-1B visas are sometimes called high-tech visas because they have enabled many computer programmers and other high-tech workers to come here.

Obtaining an H-1B visa involves several steps, but they can usu- ally be accomplished within a few months. The downside is that, while Congress has raised the number of H-1B visas that can be granted each fiscal year, the quota is still reached long before the end of the year.

The employer, not the foreigner seeking to come here, is respon- sible for initiating the process and paying associated costs and fees. Employers can be fined for requiring reimbursement from the foreign worker. To initiate the process, the employer must obtain from its local employment office a prevailing wage determination for the position to be filled. The employer then electronically files a Labor Condition Application (LCA), Form 9035E, with the U.S. Department of Labor (DOL) using the department’s iCERT elec- tronic system.

When the LCA has been approved, the employer then files a petition with the U.S. Citizenship and Immigration Services (USCIS) requesting issuance of an H-1B visa. If the petition is approved, the visa itself is issued to the alien by the appropriate U.S. consulate.

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In addition to paying at least the prevailing wage to the foreign worker under an H-1B visa, the employer must also offer the same range of benefits as is available to its comparable U.S. employees. Even if the worker becomes unproductive (“benched”) for some reason, he or she must still be paid. The employer must also pay for the worker’s return trip home after the visa has expired.

H-1B visas are issued for employment in a specific position. If a foreign worker wants to change positions or employers once here, a new H-1B visa must be applied for. The foreign worker is not eli- gible for employment in the new position or by the new employer until the visa is issued.

Additional requirements apply to employers that are H-1B depen- dent, that is, employers whose workforce include H-1B individuals in amounts larger than specified numerical or percentage thresholds.

H-2B VISAS H-2B visas are somewhat similar to H-1B visas, except that they apply to a far larger pool of prospective workers: the unskilled and those whose skills fall below the professional level covered in the H-1B category. For that reason, the employer must satisfy the sec- retary of labor that it has been unable to find a sufficient number of U.S. workers who are able, willing, and qualified to fill the positions for which it seeks to import foreign workers.

H-2B visas are generally issued for one year and are renewable in one-year increments for a total of three years.

TN VISAS UNDER NAFTA In addition to opening our northern and southern borders to trade, the North American Free Trade Agreement (NAFTA) made it easier for Canadians and Mexicans to come to the U.S. to engage in busi- ness at a professional level. A professional for NAFTA purposes is similar to an H-1B specialty worker—basically a person whose job requires at least a bachelor’s degree. Depending on the particular profession, experience may substitute for a degree. And in a few

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cases, both a degree and experience are required. More information about TN visas and the professionals who quality is available on the website of the U.S. Department of State (DOS).

The procedure for Canadian nationals is simple. An employer desiring to hire a Canadian national writes a letter to the Canadian citizen, describing the job, agreeing to employ the worker, setting out the terms of the arrangement (for example, salary), and the dates the employment is to begin and end. The worker then appears at a U.S. port of entry and presents the letter, along with evidence of the foreign worker’s professional qualifications, proof of Canadian citizenship, and a $50 fee. Although Canadian citizens do not need Canadian passports, they must be able to prove that they are Cana- dian citizens. The worker is usually admitted to the U.S. on the spot.

Mexican nationals must obtain a TN visa to enter the U.S. According to the DOS, an interview at an embassy consular section is required for most visa applicants as part of the visa application process. Interviews are generally by appointment only. As part of the visa interview, an ink-free, digital fingerprint scan can generally be expected. The waiting time for an interview appointment for most applicants is a few weeks or less, but for some embassy consular sections, it can be considerably longer. Mexicans must also submit specific documentation in support of their TN visa application.

Entry under a TN visa may be denied when the secretary of labor certifies that entry may adversely affect the settlement of any labor dispute or the employment of any person who is involved in such dispute. In other words, an employer cannot import Canadian or Mexican professionals as strike breakers.

Persons in the U.S. under TN status may stay no longer than three years. While the USCIS can grant repeated three-year exten- sions, TN status is not for permanent residence.

WORKPLACE PROTECTIONS With passage of the law prohibiting employment of undocumented workers, Congress had concern that employers would discriminate

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against persons who are in fact eligible to work but who look or sound foreign. So at the same time, Congress made it illegal for employers having four or more employees to discriminate based on citizenship status or national origin. (Remember that although Title VII addresses national origin, it only applies to employers having 15 or more employees; Title VII does not address citizenship status at all.) Under that law, it is generally illegal for an employer to adopt a U.S.-citizens-only policy.

Employers do not have an affirmative duty to sponsor foreign workers, and they may refuse to sponsor a foreigner seeking employ- ment here, whatever the reason for the refusal. And while it is not illegal in theory for an employer to prefer a U.S. citizen over an eligible alien if the two are equally qualified, there may be a practical risk in rejecting a candidate based solely on his or her citizenship.

In addition to protecting foreign workers from discrimination on the basis of citizenship, U.S. laws generally cover foreign workers and workers employed in the U.S. by foreign employers to the same extent as U.S. citizens working here for U.S. companies. For exam- ple, Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), wage and hour laws, and union nondiscrimination laws generally apply with full force to all persons working within the U.S., without regard to the worker’s citizenship or the employer’s foreign or domestic status.

There are several exceptions, however, discussed below.

FCN Treaties One exception is based on treaties the U.S. has with many foreign countries. Friendship, commerce, and navigation (FCN) treaties permit foreign companies doing business in the U.S. to engage, at their choice, high-level personnel essential to the functioning of the enterprise. These treaty provisions have been held to permit for- eign companies to discriminate in favor of their own nationals, even though doing so would otherwise constitute race or national origin discrimination.

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Foreign Sovereign Immunities Act Another exception is based on the Foreign Sovereign Immunities Act (FSIA). Under the FSIA, foreign states are immune from the jurisdiction of courts in the U.S. so long as they are engaged in governmental-type activities (as opposed to commercial activities).

CASE STUDY: EMPLOYER PROTECTED UNDER FSIA Saudi Arabia hired a Virginia security firm to work with the Saudi military in providing protection for the Saudi royal family at a family residence in California. A female employee of the security firm quit after the security firm refused to assign her to a command post position for which she was fully qualified. The security firm based its refusal on instructions of the Saudi military that such an assignment would be unacceptable under Islamic law, since the female officer would have to spend long periods working with her Saudi male counterparts.

The female officer filed suit against her former employer claiming sex discrimination. The 4th Circuit Court of Appeals ruled that providing security for members of the royal family is quintessentially an act peculiar to sovereigns and was therefore the type of government activity that fell within the FSIA’s immunity protection. The court went on to hold that the security firm, even though it was a U.S. company, was entitled to derivative immunity when following the instructions of the foreign sovereign not to assign its female officer to the command post.

English Language Ability Many employers require their employees—particularly those who must deal with the public—to be able to speak English. Even though such a policy might inadvertently exclude certain immigrant groups, it is usually a justifiable requirement. Employers cannot discriminate against those with accented English so long as the employee can communicate effectively.

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Some employers go further and prohibit their bilingual employ- ees from even using a language other than English while at work. It is difficult to see how that policy could be justified.

REMEDIES AVAILABLE TO UNDOCUMENTED WORKERS Suppose an employer discriminates against an undocumented worker by refusing to promote him or her solely on the basis of national- ity, or suppose an employer violates the Fair Labor Standards Act (FLSA) by refusing to pay overtime, or the employer violates federal labor law by firing him or her for protected union activity. May the undocumented worker go to court? And if so, what remedies does he or she have?

A pair of Supreme Court cases provides some guidance. In 1984, in a case called Sure-Tan, Inc. v. NLRB, the court ruled

that an employer committed an unfair labor practice by reporting his illegal aliens to the immigration authorities in retaliation for the employees’ pro-union votes. The court said if undocumented alien employees were excluded from participation in union activi- ties and from protections against employer intimidation, a subclass of workers would be created without a comparable stake in the collective goals of their legally resident co-workers, thereby erod- ing the unity of all employees and impeding effective collective bargaining.

In 2002, the Supreme Court decided Hoffman Plastic Com- pounds, Inc. v. NLRB, which involved the question whether an illegal alien who was fired for union activity could be awarded back pay as a remedy for the employer’s unfair labor practice. (Remem- ber that back pay is pay the employee would have earned between the date he or she was fired and the date the court rules.) By a slim, 5-4 majority, the court pointed out that Congress made combat- ing the employment of illegal aliens central to the immigration laws. Under those laws it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Awarding

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back pay in a case such as this, said the court, not only trivializes the immigration laws, but it also condones and encourages future violations.

The employer in Hoffman, although avoiding liability for a back- pay award, was still subject to a cease and desist order and an order to post a notice setting forth employee rights under the federal labor law. Such orders are enforceable by contempt proceedings should the employer fail to comply.

Sure-Tan and Hoffman dealt with unfair labor practices in vio- lation of the National Labor Relations Act (NLRA). Do the same rules apply for employment discrimination against illegal aliens? Although the Supreme Court has not had occasion to answer the question as of this writing, there is every reason to think that the holdings in Sure-Tan and Hoffman Plastics will apply here as well. In other words, while discrimination against undocument- ed workers is illegal, the remedies available to them for illegal discrimination probably do not include reinstatement and back pay, since those remedies would contravene federal immigration policy.

Recognizing the likely impact of Hoffman on employment dis- crimination, the Equal Employment Opportunity Commission (EEOC) rescinded provisions in its Enforcement Guidance regard- ing seeking back pay for undocumented workers.

ALERT! Sure-Tan and Hoffman resolved possible inconsistencies between two federal laws—the

NLRA and the Immigration Reform and Control Act. Some courts have ruled, however,

that back pay is available when an employee is fired in violation of state nondiscrimina-

tion laws.

Yet another question involves violations of wage and hour laws. Suppose, for example, that, contrary to the FLSA, an employer fails to pay an undocumented worker the minimum wage or overtime for work already performed. Most courts considering the question

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have concluded that payment should be ordered. They have rea- soned that the Hoffman rule against back pay does not apply, since back pay involves compensation the employee failed to earn because he or she was improperly fired, not compensation that he or she actually earned but was not paid.

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