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I-9 Anomalies That Challenge Employers: TPS, Refugees & Asylees, H-1B Transferees And Subcontractor Obligations

by Josie Gonzalez

Headline news of immigration violations remind one of the ongoing compliance responsibilities that challenge employers in the area of hiring practices. While many feel confident that they've established basic I-9 procedures to ensure compliance in this area, there are a sufficient number of immigration categories and exceptions to the rule to challenge even the most savvy Human Resources professional. While there is no obligation to review the I-9s of one's contractors, the recent allegations of liability by Wal-Mart, over the employment practices of its subcontractors, makes one wonder if increased steps should be taken by management to ensure a contractor's compliance with immigration laws. Practical tips on how to handle all of these challenges are provided here.

Temporary Protected Status - TPS
Temporary Protected Status, or TPS, is granted to nationals of designated countries, such as El Salvador, Honduras, Burundi, Sierra Leone and others, that are suffering the effects of an environmental disaster, armed conflict or other temporary conditions. Approximately 290,000 Salvadorans were recently granted an extension of TPS for a period of 18 months, until March 9, 2005. To allow ample time for re-registration and prevent gaps in employment authorization, the USCIS ( formerly INS) granted an automatic extension of the expiration of the Employment Authorization Document (EAD) to March 9, 2004. Notice of the extension was published in the Federal Register on July 16, 2003.

This automatic extension of employment authorization for TPS Salvadorans is limited to individuals with Form I-766 EADs bearing an expiration date of September 9, 2003, and the category notation: "A-12" or "C-19"; or "274A.12(A)(12)" or 274A.12(C)(19)" for Form I-688B EADs. For completion of the Form I-9 at the time of hire or re-verification, qualified individuals may present a TPS-related EAD as proof of identity and employment authorization through March 9, 2004. Thereafter, EADs will be issued valid to March 9, 2005 (See for information on TPS for El Salvador and other designated countries).

Note that this is not the first time that the government has befuddled employers by providing for an automatic grant of continued work authorization for individuals possessing an expired work authorization card. In the early 1990's El Salvadorans received at least three of these types of automatic renewed work authorizations. H.R. personnel, trained to audit the expiration dates of work authorization cards, undoubtedly must be confused to learn that an expired document does not in all cases mean that the work authorization has expired. The Office of Special Counsel, a component of the Civil Rights Division at the U.S. Department of Justice that handles immigration-related discrimination complaints, has warned that an employer would be liable if it refuses to continue to employ such aliens, stating that "Ignorance of the law is no excuse."[ corrected Ed. 2/9/04 ]

Asylees and Refugees
Another example of where an expired document is not a bar to employment concerns asylees and refugees. A recent memorandum issued by the Deputy General Counsel for the USCIS addresses the issue of employment authorization and documentation of aliens granted asylum. While those individuals granted TPS status are given temporary employment authorization for specific periods of time, aliens who are granted asylee or refugee status are authorized to work indefinitely, as long as they maintain that status. While they may obtain an employment authorization document, typically a photo card entitled "Employment Authorization," they do not need one in order to gain employment. Instead, they can present other forms of documentation to satisfy the I-9 requirements, and can indicate "N/A-asylee" or "N/A - refugee" on the line next to box 3 in Section 1 of the I-9 to show indefinite work authorization. Asylees and refugees should be provided with unrestricted social security cards (unlike some other aliens, such as those with TPS work authorization who receive restricted social security cards that state: "valid for work only with INS authorization"). Only the unrestricted card may be accepted as a List C document, along with a List B identity document such as a driver's license.

Once again, the OSC's legal unit will represent any individual granted refugee or asylee status in a complaint against an employer who refuses to employ them. The lesson to learn here is to give the employee the benefit of the doubt, and investigate; don't summarily refuse to employ.

H-1B Nonimmigrants
Individuals currently working in H-1B approved status now find it easier to change employers. Previously, an H-1B worker could not take up employment with a different employer until a new H-1B application was both filed and approved by BCIS. The H-1B approval from a predecessor H-1B employer authorized employment specifically for that named employer and no one else. Now, Section 105 of the American Competitiveness in the Twenty-First Century Act, which became effective October 17, 2000, provides for "portability" and permits such an alien to begin new employment upon the filing of an H-1B petition with the USCIS. As evidence of employment authorization, an employer may record the file number from the BCIS filing receipt under the "other" category from List C (7), and when the actual approval is received, the I-9 can then be updated. Attached to the I-9 should be the current H- 1B approval notice or I-94 for the former employer, as well as the new H-1B filing receipt.

Note: Only current H-1B holders seeking a change in employers will benefit from the grant of immediate work authorization; this provision does not apply to other temporary worker categories or to individuals seeking an initial grant of H-1B status.

Use of Subcontractors
As highlighted by the recent, highly publicized federal raids of 61 Wal-Mart stores, employers do have certain immigration-related responsibilities in the use of contract labor. While an employer is not responsible for completing I-9s for subcontract workers, it is illegal for an employer to use the services of contractors who knowingly employ unauthorized aliens. Additionally, an employer is obliged to refrain from the continued use of employees of the contractor once it becomes aware that they are not authorized to work. Such knowledge, actual or "constructive", may be acquired in many ways: referrals to the subcontractor for employment because H.R. wasn't pleased with the quality of the documents presented to them; knowledge gained when an employee of the subcontractor is attempting to transition over to the employer's workforce; or incriminating statements communicated by the subcontract employee to supervisors or managers.

More subtle "tattle-tale" indicators which could give rise to "constructive knowledge" (i.e. knowledge that could be inferred through facts and circumstances coupled with failure to investigate) include bargain-basement contract bids and adverse publicity about the subcontractor's use of unauthorized aliens.

Employers who utilize contract labor should have clauses in their contracts stressing the importance of compliance with all immigration laws; however, this alone will not necessarily protect an employer from liability. The prudent employer may provide training to the contractor regarding immigration requirements; may require that the contractor screen the validity of social security cards through the Social Security Administration; may conduct periodic audits of the I-9s; and may also provide training to its own managers regarding the company's obligation to refrain from using subcontract workers if they are not legally authorized to work.

In conclusion, remember that subcontract labor may consist not only of unskilled workers, such as cleaning crews, but also skilled and professional workers, such as nurses and other healthcare workers employed through a registry or IT professionals contracted from a computer consulting firm. Regardless of the occupation, potential liability exists. Employers should know the reputation of their contractors, and make good faith efforts to ensure their compliance with immigration laws.

About The Author

Josie Gonzalez is the managing partner of Gonzalez & Harris, a Pasadena, California based immigration law firm. She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. She served for nearly ten years on AILA's Board of Governors; has contributed as Chair, Co-Chair & member of various national liaison committees; and served as Editor-in Chief for the David Stanton Manual on Labor Certification (1998). In 1999, she was recognized by AILA for "Excellence in Advancing the Practice of Immigration Law", and was included in "The Best Lawyers in America."

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.