Recently, U.S. authorities have increased their oversight of foreign employees to ensure that such employees have completed the necessary steps to legally work in the United States. As a result, any company that employs foreign employees should ensure compliance with all relevant employment and immigration regulations prior to sponsoring a foreign employee for U.S.-based employment. Moreover, once the employee begins working in the United States, the employee must complete all necessary steps to guarantee that he or she can remain in the United States for the authorized time period.
Under U.S. regulations, employers who wish to permanently hire foreign workers must, among other things, receive a certification from the Department of Labor that there are no U.S. workers able, willing, qualified, and available to accept the job and that employment of the foreign employee will not adversely affect the wages and working conditions of similarly employed U.S. workers. For foreign “professional” workers (such as an engineer), the employer must also follow additional recruitment steps such as issuing print advertisements and/or using employee referral programs.1 Such recruitment efforts should be documented by notices or memoranda advertising the program and specifying any incentives offered.
Companies that fail to comply with the above regulations may be precluded from sponsoring a foreign employee for permanent U.S. employment. For example, in a recent decision, the Board of Alien Labor Certification Appeals held that Cessna Aircraft Co. (Cessna) failed to comply with the necessary recruitment efforts and therefore could not sponsor a foreign mechanical engineer to work permanently in the U.S.2 Cessna had provided proof of its employee referral program entitled “Employee Referral Program—Level 1 Bonus,” and argued that such proof was in compliance with the regulations. The Board disagreed, finding that Cessna’s documentation did not explain what a “Level 1 Bonus” was and, therefore, did not specify the incentives offered. The Board reiterated that U.S. regulations require documentation of the specific incentive offered by the program. Because Cessna did not provide such documentation, the Board found that Cessna did not carry its burden of proving that it used an employee referral program and denied certification for the foreign mechanical engineer to work in the United States.
In addition, several air carriers have recently received subpoenas from U.S. Immigration and Customs Enforcement seeking Employment Eligibility Verification Forms (I-9 Forms) for employees hired after November 1986. These forms are easily accessible3 and are a way for the employer to verify for the Government that a new hire is either a U.S. citizen or an alien authorized to work in the United States. Moreover, all paid employees must complete an I-9 no later than three days after their first day of paid work. The employer is responsible for ensuring that the employees complete all forms properly, and in a timely manner.4 Once completed, employers must retain the I-9 forms for three years after the date of hire or one year after the date employment ends, whichever is later. The employer is not required to file the forms with the Government, but must keep the forms on file to produce to immigration or labor authorities if requested. Failure to do so may result in fines or penalties.
To ensure compliance with the above requirements and any potential audits, all carriers should complete I-9 forms for all future hires no later than their third day of work, and should ensure that such forms are properly retained in employment records. Employers also should consider verifying the eligibility status of all current U.S. employees to avoid possible fines or other penalties.
1 See 20 CFR Part 656.17(e)(1).
2 In the Matter of Cessna Aircraft Co., Employer, on behalf of Ravindran, Apoorv, Alien, 2012-PER-03663, A-10333-34522 (Dep’t of Labor, Bd. of Alien Certification App., June 1, 2016).
3 The forms are available online in English and Spanish at: https://www.uscis.gov/i-9.
4 The I-9 is not required for unpaid volunteers or for contractors.