by Monica E. Lukoschek
Few concepts in America elicit a greater range of emotions than that of immigration. Among others, these emotions include hope, fear, opportunity, relief, safety, and freedom. Depending on your perspective and personal history, you might react in one of myriad ways to the concept of U.S. immigration. Historically, the United States has received more (and more diverse) immigrants (documented and undocumented) than any other nation, and also has struggled in a love-hate relationship with immigration since its inception.
Because of the emotionally charged aspect of immigration to the United States, regulating immigration has always been a policy nightmare. As a result, there exists a patchwork of laws, regulations, executive orders, policies, and case law decisions, which makes the practice of immigration law one of the most complex areas of federal law.
When considering immigration, many are apt to think of unaccompanied children, migrant caravans, or undocumented workers. Controlling employment authorization is one area with which many Americans are likely to be unfamiliar. The truth is that the United States legally accepts millions of non-immigrants and, in many cases, issues valid work authorization to millions of otherwise undocumented immigrants.
On November 3, 1986, Congress passed the Immigration Reform and Control Act (IRCA), and with it, deputized U.S. employers as gatekeepers of the lawful U.S. workforce. As many of us know, with very limited exceptions, every worker, regardless of nationality, is required to show proof of identity and employment authorization within three days of hire by completing a Form I-9 (Employment Eligibility Verification) and providing certain allowable documentary evidence. Employers are required to inspect, verify, and retain I-9 forms for every worker, under penalty of civil and sometimes criminal penalties. As evidence of the complexity of immigration law, the Form I-9 is a three-page form, whereas the M-274, Handbook for Employers, the instruction manual for employers for completing, and retaining Forms I-9, is more than seventy pages long.
It is commonly assumed that most foreign nationals come to the United States for jobs and the opportunity to work, but who is permitted to work legally? The Immigration and Nationality Act (INA, or the “Act”) states that anyone who is not a United States citizen or national is considered an “alien” within the Act. While colloquially we might refer to all foreign-born persons in the United States as “immigrants,” Lawful Permanent Residents (LPRs) or those who possess a so-called “green card,” are aliens under the Act. The INA defines immigrants or LPRs by defining the exceptions, including non-immigrants and other persons authorized to be present in the United States. That said, only some persons who are lawfully present in the United States are authorized to work legally.
The prohibition of unlawful employment of aliens is found at INA section 274A. The Code of Federal Regulations section 274a.1(a) states that an unauthorized alien is one who was not (1) lawfully admitted for permanent residence, or (2) authorized to be so employed by this Act or by the Attorney General. Section 274a.12 defines those classes of aliens authorized to accept employment, including non-immigrants who are permitted to work in the United States, either incident to their lawful non-immigrant status or upon approval of an affirmative work authorization application to the U.S. Citizenship & Immigration Service (USCIS).
There are dozens of non-immigrant visa categories which allow foreign nationals to enter the United States temporarily to engage in specified activities. For example, to visit for business or tourism, to study, to engage in internships or research activities, or to serve in diplomatic or government positions of foreign embassies, among others.
Non-immigrants who may work incident to status include: H-1B (Specialty Occupation and Fashion Models), H-2A (Temporary Agricultural Workers ) and H-2B (Temporary Non-Agricultural Workers), H-3 (Trainees), E-1 (Treaty Traders), E-2 (Treaty Investors), E-3 (Certain Specialty Occupation Workers from Australia), I (Representatives of Foreign Media), J-1 (Exchange Visitors, Professors or Scholars, Research Assistants, Students, Trainees, Teachers, Specialists, Au Pairs and Camp Counselors), L-1A (Intracompany Transferee Executive or Managers), L-1B (Intracompany Transferees with Specialized Knowledge), R-1 (Religious Workers), O-1 (Individuals with Extraordinary Achievement in sciences, arts, education, business, or athletics), P-1A (Athletes), P-1B (Member of an Internationally Recognized Entertainment Group), P-3 (Artist or Entertainer who is part of a culturally unique program), Q (Cultural Exchanges), and TN (NAFTA Professionals). These workers do not need to apply for an employment authorization document from the USCIS. However, should they wish to change to a different employer, they will need to obtain either a new approval of their employment status from the USCIS, and/or a new visa at a U.S. consular post abroad. Additionally, any extensions of stay or changes of status must be filed with and approved by the USCIS, also with the employer’s support.
There are also many lawful non-immigrants who may work in the United States only upon prior approval by the USCIS of an Employment Authorization Document or Employment Authorization Card. These workers include spouses of E-1, E-2, E-3, H-1B, J-1, and L-1A/B visa holders. This type of work authorization is not tied to a specific employer, but rather is based on the marital relationship to the primary visa holder. Employment Authorization Cards are always temporary and require the applicants to renew them with the USCIS prior to expiration in order to be permitted to continue to work legally.
Other non-immigrants, such as F-1 (Academic Students) and M-1 (Vocational Students) may also apply for employment authorization under certain circumstances. F-1 students may not work off-campus during the first academic year but may accept on-campus employment subject to certain conditions and restrictions. They may also be eligible to work off-campus on a case-by-case basis as a result of special situations such as severe economic hardship or special student relief. After the first academic year, F-1 students may engage in three types of off-campus employment: Curricular Practical Training (CPT), Optional Practical Training (OPT) (pre-completion or post-completion), Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT). M-1 students may engage in practical training only after they have completed their studies. Any off-campus training employment of F-1 or M-1 students must be related to their area of study and must be authorized prior to starting any work by the Designated School Official and USCIS.
Some aliens who may be unlawfully present in the United States and must affirmatively apply for an Employment Authorization Card are Temporary Protected Status and DACA applicants, refugees and asylees, and persons who are in withholding of deportation or removal proceedings, among others. The approval of employment authorization temporarily changes the status of these aliens from undocumented to lawfully present and able to accept employment.
Immigration laws and regulations are confounding at best. For employers and those responsible for managing an employer’s I-9 records, the variety of permissible documents and statuses can be overwhelming. It is always best to consult with the M-274, I-9 Central (www.uscis.gov/I-9-central) or an experienced immigration lawyer before assuming a worker is or is not authorized for employment.
Monica E. Lukoschek is a founding partner at U.S. Immigration Law Group, LLP, practicing exclusively in employment-based immigration law. She can be reached at Monica@usilg.net.