Update On Immigration Issues In The Workplace For

Report
UPDATE ON IMMIGRATION
ISSUES IN THE WORKPLACE FOR HEALTHCARE
PROVIDERS
Presented by:
Laura Deddish Burton
Smith Moore Leatherwood LLP
300 N. Greene Street
Suite 1400
Greensboro, NC 27401
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© 2009 Smith Moore Leatherwood LLP. ALL RIGHTS RESERVED.
Terminology
• U.S. Department of Homeland Security (DHS)
– U.S. Citizenship and Immigration Services
(USCIS)
– Immigration and Customs Enforcement (ICE)
– Customs and Border Protection (CBP)
• U.S. Department of State (DOS)
• U.S. Department of Justice (DOJ)
• U.S. Department of Labor (DOL)
Terminology
• Immigrant vs. Nonimmigrant
•
•
•
•
Lawful Permanent Resident (LPR)
Citizenship and Naturalization
Consular Processing
Adjustment of Status (AOS)
Family Tree of U.S. Immigration
United States
CITZENS
By Birth
NON-CITIZENS
IMMIGRANTS
DERIVED
from parent(s)
Family-Based
Naturalization
Employment
DV Lottery
Asylee/Refugee
Country-Specific
NON-IMMIGRANTS
"Alphabet Soup"
BASIC I-9 CONCEPT
 Keep in mind two goals:
• To make sure Employers only
hire people who are authorized
to work in the US (screen out
unauthorized workers).
• To make sure Employers do
not discriminate against people
based upon foreign origin
(name, appearance, accent)
when hiring.
NEW FORM I-9
• The US Citizenship & Immigration Services (USCIS) has
issued a new version of the I-9 Employment Eligibility
Verification Form. All US employers are required to use the
new I-9 as of April 3, 2009. This is the only acceptable
version of the form.
• The Form’s validity has been extended until August 31, 2012.
Employers may use the Form dated August 7, 2009 or the
February 2, 2009 Form.
I-9 Change:
• All documents presented by an employee must be unexpired on
the date presented (including U.S. passports and List B
documents)
• Section 1 – A new box has been added for an employee to selfidentify: “A non-citizen National of the United States.”
(separated from first box)
• Section 2 -- Changes to List A documents (documents that may
be used to prove both identity and work authorization) :
– U. S. Passport must be unexpired
– Adds new U.S. Passport card as acceptable document
– Only I-766 Employment Authorization Document
acceptable (Old cards I-688, I-688A and I-688B are no
longer acceptable)
List A Documents:
Changes to List A documents (documents that may be used to
prove both identity and work authorization):
-
Adds Foreign Passport with machine-readable immigrant visa
documentation (I-551)
-
Adds documentation (passport and I-94 card) for citizens of the
Federated States of Micronesia and the Republic of the Marshall
Islands
-
Unexpired foreign passport with attached I-94 card for
nonimmigrant aliens authorized to work for a specific employer
(language is clarified on form).
• The new I-9 form should be used on a goingforward basis and does not need to be
completed for existing employees. (With
exception of specified federal contractors)
• The new I-9 instructions specifically state that
the employee is NOT required to provide a
Social Security Number in Section 1, UNLESS
the employer participates in the E-Verify
program.
The new I-9 Form and the updated “Handbook
for Employers, Instructions for Completing the
Form I-9” are available to employers online at
www.uscis.gov (near the bottom of the list of
forms) or by calling USCIS at 800-375-5283.
WHY WORRY ABOUT I-9
COMPLIANCE?
Significant Potential
Penalties for 4 Types of
Violations
PENALTIES
• Knowingly hiring or continuing to employ an
unauthorized worker:
–
–
–
–
1st Offense: $375-$3,200 per alien.
2nd Offense: $3,200-$6,500 per alien.
3rd or Later Offense: $4,300-$6,500 per alien.
Additional criminal penalties for “pattern and practice”.
PENALTIES
• Discrimination on the basis of national origin or
citizenship status:
–
–
–
–
1st Offense: $375-$3,200 per individual.
2nd Offense: $3,200-$6,500 per individual.
3rd or Later Offense: $4,300-$16,000 per individual.
Additional remedies include back pay, injunctive relief and
attorney’s fees.
PENALTIES
• Paperwork violations: failing to properly complete
I-9s or overdocumentation (for requesting too many
documents):
– $140-$1,375 per individual (for each incorrect form).
– 10-day “cure” period for some violations.
PENALTIES
• Document fraud for knowingly accepting a forged
document:
– 1st Offense: $375-$3,200.
– Later Offenses: $3,200-$6,500.
– Additional potential criminal penalties.
BASIC FOUR STEP PROCESS
FOR COMPLETING I-9 FORMS
• Employee completes §1 by the end of the first day of
employment.
• By the end of the third day of employment, employer
reviews employee’s documents to verify identity and work
authorization and completes §2.
• If employee’s work authorization expires, put expiration
date in tickler system.
• Reverify before work authorization expires.
STEP 1:
EMPLOYEE COMPLETES §1
• Make sure all information is completed and proper box is
checked.
• Check the employee’s Social Security number for legibility,
but do not ask for Social Security card.
• Complete an I-9 for all employees.
• The employee must complete §1 on or before the first day of
work.
• The employee may use a translator, but the employee should
still sign and date §1.
STEP 2: Employer Obtains and Examines
Acceptable Documents by Day 3
• Obtain one document from List A OR one from List B AND one
from List C.
• Let the employee choose the documents.
• Avoid overdocumentation.
• Suspend the employee if the documents are not received by Day
3.
• A receipt for a replacement document is acceptable.
STEP 2: Employer Obtains and Examines
Acceptable Documents by Day 3
• Examine documents for authenticity.
• Photocopy documents based on company policy (unless participating
in E-Verify).
• Verification of Social Security numbers if based on consistent policy.
• Fill in Section 2 and sign and date.
• Retain I-9 forms in separate files.
STEP 3:
CREATE A TICKLER SYSTEM
• Enter work authorization in tickler system.
• Remind employee 90-120 days in advance of
expiration.
• Do not reverify identity documents or lawful
permanent resident cards.
STEP 4:
REVERIFY
• Just reverify work authorization, not identity.
• Accept any combination of documents: List A
OR List B AND C.
• Complete §3.
RETENTION REQUIREMENTS
• An employee’s I-9 form must be retained for the full period
of employment.
• Once employment ends, the I-9 must be retained for the
longer of:
– One year from the date of termination
OR
– A total of three years from the date of hire.
VISAS FOR HEALTHCARE
PROVIDERS
Nurses:
TN Visa
• Canadian and Mexican Citizens
• Valid for up to three years
• Must have valid VisaScreen Certificate
• For RNs only, not LPNs
• Can be full or part time
• No dual intent
VISAS FOR NURSES
H-1B Visa:
– More challenging because of visa requirements
– Position must require BSN or higher
– Only for advanced categories – nurse anesthetist, etc.
H-1C Visa:
– For nurses in certain HPSAs at certain designated medical
facilities
– 500 per year available in U.S.
VISAS
VISAS
TN visas also available for:
• Dentist
• Dietitian
• Medical Lab Technologist
• Nutritionist
• Occupational Therapist
• Pharmacist
• Research physician (non-clinical)
• Physical therapist
• Psychologist
• Recreational Therapist
SCHEDULE AA
SCHEDULE
“GREEN CARDS
“GREEN
CARDS”
• Schedule A immigrant visas available for “certain medical
personnel”
• Available for registered nurses and physical therapists
• Congress has designated these as shortage professions
• No recruitment required for labor certification
• EB-3 Skilled Workers – No “head of the line” treatment
PHYSICIANS
PHYSICIANS
H-1B visa:
• Clinical practice
• Must have passed USMLE
• ECFMG certificate
• License to practice
PHYSICIANS
PHYSICIANS
J-1 Waiver for International Medical Graduates:
– 2-year home residency requirement can be waived in
certain cases to work in HPSAs, MUA/MUP, or a VA
facility
– Exceptional hardship or sponsorship by an Interested
Government Agency (IGA)
– IGA = Conrad 30 (state public health department); VA;
ARC; HHS; DRA
PHYSICIANS
PHYSICIANS
J-1 Waiver for International Medical Graduates:
– Physicians receive an H-1B for a specific employer in
HPSA
– Generally cannot change employees during waiver period
– Cannot “moonlight”
– After waiver period, visa is standard H-1B
PHYSICIANS
PHYSICIANS
• Generally EB-2 Professional with Advanced Degrees
• Certain National Interest Waivers available to avoid labor
certification process
E-VERIFY
(EMPLOYMENT ELIGIBILITY
VERIFICATION PROGRAM)
E-Verify
• Voluntary online verification
• Participation requires Memorandum of Understanding with
ICE
• Currently free to use
• 92% of queries receive instant verification
• Non-citizen work authorization status mismatches to be
resolved by USCIS staff
• Currently 100,000 employers use E-Verify (out of
approximately 6 million).
E-Verify
• Cannot use as a pre-screening tool.
• Only used for after-hires (except federal contractors) and must
use within 3 days of hiring.
• If participating in E-Verify program, must use for all new hires.
• Cannot use for employees hired before employer joins program
(except federal contractors).
• Cannot use for reverification, with some exceptions.
• Offers rebuttable presumption that employment is authorized.
• Must photocopy certain I-9 documents if participating in
program.
E-Verify for Federal Contractors
• Under Federal Acquisition Regulation (FAR).
• Went into effect September 8, 2009.
• Federal contractor provision to be inserted in many
memoranda of understanding for organizations that do
business with U.S. government.
• It appears that Medicare/Medicaid providers do not fall under
the provision.
Federal Contractors
Who qualifies:
• Businesses with a contract with federal government agency
• Required for all contracts over $100,000
• Exceptions for commercially available off-the-shelf items
(COTS) (Most food and agricultural products)
• Provision applies to subcontractors providing services or
construction over $3,000
• Must enroll in E-Verify within 30 days of entering contract
Federal Contractors
• Must agree to use E-Verify for all new hires
• Must agree to use E-Verify for all existing employees working
on the federal contract
• May choose to verify all existing employees (different from
standard E-Verify program)
• Exception for institutions of higher education, state/local
governments, and governments of federally recognized Indian
tribes – do not have to verify all new hires
• Required verification inquiries must be initiated within 90
days of enrollment
E-Verify, Including Federal
Contractors
• I-9 Differences:
– Employee must provide Social Security number;
– List B document provided must have a photograph;
– If employee provides I-551 (“Permanent Resident Card”)
or I-766 (Employment Authorization Document), the
employer must photocopy the document and keep it with
Form I-9.
Questions?
Laura Deddish Burton
Smith Moore Leatherwood LLP
300 N. Greene Street
Suite 1400
Greensboro, NC 27401
T: (336) 378-5566
[email protected]

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