Hiring a Legal Workforce Employment Verification and Working Visa Issues

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Hiring a Legal WorkforceEmployment Verification
and Working Visa Issues
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• The I-9 Form Who, What, Where,When and Why!
• Social Security "Mismatch Issues Don't Ignore
  Them
• Working Visa Options H-2A, TN/H-1B, 245(i)
  Adjustment andLegalization

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I-9s
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WHO?

• An employer must maintain a Form I-9 for all new
  hires, regardless of nationality

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WHAT?
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(No Transcript)
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Section 1

• Employee must complete Section 1 of I-9 Form on
  the first day of employment

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Section 2

• The employer must complete Section 2 within three
  days of employees start date, by verifying
  documents that establish identity and employment
  eligibility
• Acceptable Documents
• One document from List A OR
• One document from List B along with one document
  from List C

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• The employer cannot request specific documents,
  including INS-issued documents

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(No Transcript)
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Section 3

• If the employee listed an expiration date for
  employment eligibility in Section 1, the employer
  must conduct reverification and complete
  Section 3 on or before the expiration date

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• If copies of identification documents are kept
  with the forms, must be done for each and every
  employee

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WHERE?

• Maintain separate I-9 file, which should be kept
  apart from personnel records

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WHEN?

• Must maintain forms for 3 years after start date
  or 1 year after termination, whichever is later

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WHY?

• Avoid fines!!!
• Fines range from 100 to 1,000 for each
  paperwork violation
• Each mistake on a I-9 Form is considered a
  separate violation

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Social Security AdministrationMismatch Letters

• The SSA used to notify employers of a "mismatch"
  only if 10 or more of an employer's employees
  had this problem.
• The mismatch occurs when the name and Social
  Security Number listed on the W-2 statement
  cannot be matched to a corresponding "account"
  into which SSA credits are deposited.

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• The SSA is now sending mismatch letters for even
  a single instance of a mismatch.
• Employers faced withsuch a mismatch
  situationmust first verify that noclerical
  error has occurred.
• If it is not a clerical error, the employee may
  not be authorized for employment.

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• Such "actual knowledge" of a lack of employment
  authorization could expose the employer to fines
  from the SSA andthe INS.

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Working Visa OptionsH-2A Agricultural Worker
Provisions

• H-2A visa allows for agricultural employers who
  anticipate a shortage of domestic workers to
  bring nonimmigrant workers to the U.S. to perform
  temporary or seasonal agricultural labor or
  services

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• The Department of Labor must first certify a
  labor certification application.
• The Immigration and Naturalization Service must
  approve a nonimmigrantvisa petition.
• The nonimmigrant worker must obtainthe required
  visa stamp at a U.S. Consulate abroad.
• Note Use of the H-2A program may result in
  additional scrutiny by the wage an hour division
  of the Department of Labor.

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• Issues to Review
• Is it "Agriculture?"
• Is it "temporary" employment?
• Are there sufficient able, willing and qualified
  workers in the United States?
• Will the employment of H-2A workers adversely
  effect the wages and working conditions of
  workers in the U.S. similarly employed?

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• Related Concerns
• Housing/meals
• Transportation
• The 3/4th guarantee
• The 50 rule

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• Workers compensation insurance
• Tools and supplies
• Recordkeeping
• Abandonment ofemployment

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Other Visa Options

• H-1B Worker for "Specialty Occupation" Positions
• The TN visa under NAFTA for "Professional"
  positions for Mexican workers
• The possibility of legalization pending
  legislation
• Applications under Section 245(i) of the
  Immigration and Naturalization Act
• Family-based immigration

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Lawrence Lebowitz Matthew Phillips Cohen
Grigsby 11 Stanwix St., 15th Floor Pittsburgh, PA
15222 phone [phone] fax [phone] llebow
itz_at_cohenlaw.com mphillips_at_cohenlaw.com