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INTRODUCTION Traditionally, immigrant workers were primarily considered only for low-skill and low-pay jobs. However, the advent of corporate globalization is increasing employers’ needs for highly trained workers from other countries. As employers in the United States seek to fill jobs with workers from other countries, they are becoming increasingly aware of the complexities of immigration laws and regulations. These include intricate procedures for verifying the employment eligibility of employees who are not U.S. citizens. This article provides a brief overview of U.S. immigration law and highlights some of the recent changes that will impact U.S. employers of immigrant workers. Some employers complain that the documentation requirements for hiring foreign workers impose an onerous administrative burden involving paperwork and verification procedures. However, employers may not avoid these problems by hiring only U.S. citizens. Several federal statutes prohibit discrimination against workers based on their race, nationality, or citizenship status. This article also provides an overview and summary of some of the important recent developments in these non-discrimination provisions. I. Overview of Immigration and Labor Issues A. Why are Immigration Issues Becoming Increasingly Important to U.S. Employers? Many U.S.-based corporations are changing their frame of reference from the nation to the world. As they do so, proactive employment recruiters are targeting foreign nationals to fill the many projected job openings in the next decade. Employment growth in the United States between now and the year 2005 is projected to substantially increase in the category of white-collar jobs. The U.S. Department of Labor projections predict an increase of 26 percent for executive, administrative, and managerial positions; 38 percent for professional specialties; 32 percent for technicians and related support; and 33 percent for service occupations. [FOOTNOTE 1] Employers in the United States are uniquely positioned. Many foreign nationals seek to obtain advanced scientific and technical degrees in the United States. Exposure to the affluence and the standard of living in the United States often induces foreign nationals to want to stay in the United States. American companies can tap into this potential pool of applicants by becoming familiar with the requirements for hiring foreign nationals. B. Current Statistics on Legal and Illegal Immigration The effects of immigration in the United States are numerous, complex, and varied. Some policymakers argue that immigrants contribute to the diversity of the intellectual and cultural life in the United States and bring a renewed entrepreneurial spirit that sparks job-creating business ventures. Others argue that immigration provokes labor competition among low-skilled workers in production and service jobs. [FOOTNOTE 2]However, the statistics which describe the categories of new immigrants suggest that a large portion of those who lawfully immigrate are not in low-skill, low-paying jobs. In 1997, the United States granted permanent resident status to nearly 800,000 persons who were citizens of other countries. [FOOTNOTE 3]Nearly 79% of these individuals entered the United States because they were members of the immediate family of a U.S. citizen. [FOOTNOTE 4]Further, many others were admitted under immigration law preferences for certain types of workers, including professionals with advanced degrees and skilled workers. Table 1 shows the number of workers for each occupation who were legally granted permanent resident status in the United States in 1997. Table 1 Immigrants Admitted in 1997, by Occupation
Occupation Number Percent of Total
Higher-Paid Jobs
Engineers and Surveyors 10,281 5.0
Scientists & Mathema-ticians 2,606 1.3
Physicians 5,237 2.6
Nurses 6,161 3.0
Teachers 11,095 5.4
Executives & Managers 25,651 12.6
Skilled Workers 20,131 9.9
Subtotal 81,162 39.8%
Lower-Paid Jobs
Operators & Laborers 70,433 34.6
Service Workers 52,051 25.6
Subtotal 122,484 59.2%
TOTAL 203,646 100.0%

This data illustrates that about 60 percent (59.2 percent) of immigrant workers are occupying relatively low-paying jobs as operators, laborers, or service workers. However, nearly 40 percent (39.8%) are occupying higher-paid professional and skilled jobs. This is consistent with the view that many highly educated and well-trained foreign nationals are coming to the United States to perform work in high-skill, high-paying jobs. Yet, many people who are granted entry into the United States are coming for reasons other than their own individual jobs. According to the Department of Statistics within the INS, immigrant admissions by major categories from 1992 to 1996 were as follows: Table 2 Immigration by Category 1992-1996

Category Number Percent of Total
Family-based 2,596,079 63.7
Employment-based 589,183 14.5
Diversity programs 216,847 5.3
Other (refugees, etc.) 673,055 16.5
Total 4,075,164 100.0%

This table illustrates that the vast majority of immigrants come to the United States because they have family that already live here. For example, husbands who wish to bring their wives to the United States fall into this category. Nevertheless, a substantial portion of immigrants — 14.5 percent, or over 500,000 people — came to the United States between 1992 and 1996 under an employment-related visa. Furthermore, many who were admitted to the United States under some other form of visa are also permitted to and actually seek employment in the United States In recent years, the largest percentage of legal immigration into the United States has emanated from Mexico. In 1997, there were 147,000 Mexicans who moved into the United States legally. This accounted for 18.4 percent of the total legal immigration. No other country accounts for more than 10 percent of legal immigrants. Most (67 percent) of the legal immigrants entering the United States in 1997 intended to live in just a few states: California, New York, Florida, Texas, New Jersey, or Illinois. Not surprisingly, many intended to live in large metropolitan areas such as New York City, Los Angeles, Miami, Chicago, and the Washington, D.C. area. In addition to these lawful immigrants, there are many people who come to the United States illegally. However, immigration authorities have engaged in substantial efforts to stem the tide of illegal immigration. In 1997, the INS set a new record by deporting 111,000 illegal aliens from the United States. [FOOTNOTE 5] However, since many illegal aliens come to the United States to find work, the INS has directed much of its enforcement effort towards employers. In 1997, the INS targeted over 5,000 employers suspected of accepting or using fraudulent documents or engaging in illegal smuggling of aliens. [FOOTNOTE 6]In 19,000 cases, the INS was involved in the actual removal of employees from the workplace. In addition, the INS and the Social Security Administration implemented a pilot project with 30 employers in the Chicago area, which was designed to facilitate the verification of employment authorization for employees regardless of their citizenship. The administrative hearing office of the INS closed 100 cases involving employer sanctions. Administrative Law Judges awarded $1,065,000 in fines against employers in 1997. [FOOTNOTE 7] Because of this significant enforcement effort directed towards employers, it is imperative that firms employing aliens insure that their policies comply with applicable immigration laws. This has induced many employers to shy away from hiring aliens for fear of sanctions from immigration officials for minor or technical violations. However, employers are also prohibited from discriminating against applicants because of their race, nationality, or citizenship. Thus, in many cases employers must offer non-citizens equal employment opportunities. For these reasons employers need to understand the intricacies of both immigration laws and anti-discrimination laws. They need to walk a fine line between requiring appropriate documentation from non-citizens, without imposing unfair burdens on applicants based on their citizenship. II. The Legal Framework for Immigration Law A. Constitutional Provisions and Judicial Deference The U.S. Constitution specifically grants Congress the power to regulate immigration by passing a “uniform Rule of Naturalization.” [FOOTNOTE 8]The U.S. Supreme Court has acknowledged this rule and other sources for the broad plenary power of the Congress to regulate immigration. The Court stated, “[O]ver no conceivable subject is the legislative power of Congress more complete.” [FOOTNOTE 9]As a result, the Court has granted extreme deference to Congress in passing immigration laws. B. Statutory Provisions The Immigration and Nationality Act of 1952 (INA) is the foundation for current U.S. immigration law. That statute compiled and codified several other immigration statutes into one consolidated statute. Significant amendments to this statute have occurred since then, with the most sweeping in 1990. The law provides that non-citizens coming into the United States fall into two categories — “nonimmigrants” and “immigrants.” Nonimmigrants are those individuals who are admitted for a limited time and often for a limited purpose. Immigrants are those who want to become permanent residents of the United States. After permanent residents live in the United States for a sufficient number of years, they can apply for citizenship. People who successfully complete the residency requirement and become U.S. citizens are called naturalized citizens. The law provides for several categories of nonimmigrants and immigrants. To be admitted into the United States, individuals must meet the requirements of the applicable category. Once they do so, they are issued a “visa” which is the document that identifies their category and provides evidence of their eligibility to be in the United States. Violations of the conditions of a visa may result in expulsion from the United States. Because so many individuals come to the United States for employment-related reasons, federal statutes make employers liable for compliance with immigration law requirements. Two such statutes — the Immigration Reform and Control Act of 1986 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 — contain devices used to enforce and control immigration policy. IMMIGRATION REFORM AND CONTROL ACT OF 1986 (IRCA) IRCA was established in order to control the increasing illegal alien population. It poses on the employer the burden of verifying employment status (verification), and it prohibits discrimination against citizens and legal aliens, defining the terms and conditions under which legal aliens are admitted to work. Employers are allowed to hire temporary agricultural workers after obtaining certification from the Secretary of Labor. To reduce the numbers of illegally employed aliens, IRCA requires employers in the United States to verify the identity and employment eligibility of all of their employees who were hired after November 6, 1989. [FOOTNOTE 11]In addition, IRCA provides sanctions for employers who knowingly hire or employ illegal aliens. [FOOTNOTE 12]Addressing concerns that the documentation requirements were being used to justify disparate treatment of applicants who appeared to be foreign born, the statute was amended on November 29, 1990, to prohibit employers from requiring more or different documents than those required to verify identity and employment eligibility. In addition, the amendments provided sanctions against the production or use of fraudulent documents. Employers comply with this Act by using a form known as the “I-9,” which contains instructions for both employers and employees. [FOOTNOTE 13] Employers may obtain a free copy of a booklet that provides instructions for using the I-9 form. [FOOTNOTE 14]Additional information for employers can be obtained from the INS website. In general, the I-9 form uses a two-step analysis to verify identity and employment eligibility. Some individuals may have documents that verify both who they are and that they are authorized to work for the employer. Those documents are called “List A” documents. Examples are a U.S. Passport (issued to U.S. citizens) and an Alien Registration Card. Applicants without such documents must present one document which verifies their identity (a “List B” document) and another which verifies their eligibility to work in the United States (a “List C” document). List B documents include a driver’s license or a voter registration card. List C documents include a social security card. Thus, it was common for many U.S. citizens to show their employers both a driver’s license and a social security card when they were newly hired. THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 (IIRIRA) The Immigration Act of 1990 created civil penalties for the use of fraudulent documents in immigration matters. In 1996, Congress passed IIRIRA, which reduced the number of documents that are acceptable for completion of the I-9 form. The INS is in the process of promulgating an administrative rule that will implement these changes. However, until the new rule is finalized, the INS is operating under an interim rule. [FOOTNOTE 17]The interim rule provides that certain documents are no longer acceptable as List A Documents: the Certificate of U.S. Citizenship (INS Form N-560 or N-561), the Certificate of Naturalization (INS Form N-550 or N 570), the reentry permit (INS Form I327), and the Refugee Travel Document (INS Form I-571). In addition, the interim rule retains two documents on List A: (1) foreign passports with temporary evidence of permanent residence and (2) a foreign passport with a Form I-94, but only where the nonimmigrant is authorized to work for a specific employer. In addition, IIRIRA [FOOTNOTE 16]removed birth certificates from the list of acceptable List C documents. However, the INS used its regulatory authority to temporarily retain the use of birth certificates until a final rule is promulgated. Recognizing that employers may have relied on the existing regulations, the INS announced that it will limit prosecution of employers who commit certain violations of the interim rule. The preamble to the publication of the interim rule states:

This rule does not include a revised Form I-9. Employers and recruiters … are to continue to use the current version of the Form I-9 (edition 11/21/91) to complete the employment verification process until the Form I-9 is revised. As a result, the Service has determined in its prosecutorial discretion not to seek a civil money penalty, until further notice, for any violations based upon the changes made by this rule to the list of acceptable documents .� The Service will withhold enforcement of civil money penalties for violations associated with these changes and committed before the effective date of a final rule containing the revised form I-9, so that employers … will not be penalized if they accept documents that were previously acceptable but were removed from the list by this interim rule. [FOOTNOTE 18]

III. NAFTA’s Impact on Immigration Law The North American Free Trade Agreement became effective January 1, 1994. [FOOTNOTE 19]It is an executive agreement between the United States, Mexico, and Canada that is designed to facilitate the flow of trade and goods across the borders of the three countries. The agreement reduces tariffs and other trade barriers over several years. Since NAFTA is not a treaty but an executive agreement, legislation was needed for it to take effect. In the United States, legislation enacting NAFTA was adopted by Congress on December 8, 1993. [FOOTNOTE 20] This legislation provided that persons seeking entry into the United States under NAFTA must generally comply with existing U.S. immigration law. [FOOTNOTE 21]There are several immigration provisions of the NAFTA implementation act which closely parallel both the existing immigration law [FOOTNOTE 22]and the provisions of the United States-Canada Free Trade Agreement (CFTA) which had been in effect since 1989. [FOOTNOTE 23]NAFTA extended similar immigration provisions to those seeking temporary entry from Mexico. NAFTA legislation did not create any new categories or methods for permanent legal immigration from Mexico to the United States. It did, however, facilitate the temporary entry into the United States for four types of employees: (1) business visitors; (2) traders and investors; (3) intra-company transferees; and (4) certain business professionals. [FOOTNOTE 24]However, unlike the CFTA, NAFTA authorized the United States to set a specific numerical limit on the number of employees entering the United States from Mexico. However, labor unions have been concerned that some U.S. employers might bring Mexican workers into the United States as strike breakers as had been done in the steel mills back in the early part of this century. To address this concern, NAFTA provides that any country may refuse to issue an immigration document to any worker where the temporary entry of that worker might adversely affect the settlement of a labor dispute in progress at the place of intended employment. [FOOTNOTE 25]This was accomplished by amending the INA to prohibit the temporary entry of Canadian or Mexican workers if they intend to work at an employer where there is a strike or lockout, unless it can be established that the temporary entry of that person will not adversely affect the settlement of the labor dispute. [FOOTNOTE 26]Regulations were adopted by both the INS and the Department of State to restrict the entry of workers when they are notified by the Department of Labor of the existence of such a labor dispute. IV. Employer Sanctions for Immigration Law Violations Violations of immigration laws carry serious criminal and civil sanctions against employers who employ undocumented aliens in the United States. Section 101 of IRCA makes it illegal to hire or recruit aliens that are or become unauthorized with respect to employment. Employers are subject to civil penalties of $250 to $2,000 for each unauthorized worker. The penalty is increased to $2,000 to $5,000 for each alien for a second violation. Furthermore, when “a pattern or practice” is found, the employer can be fined $3,000 for each worker and the guilty employer or employer’s representative can be imprisoned for up to six months. Employers should be extremely cautious in processing the required documents and must do so in a timely fashion or they might lose the opportunity of hiring foreign nationals for the long-term. In effect, IIRIRA prohibits admission or adjustment of status of foreign nationals under any visa category if they have been unlawfully present in the United States. For one year or more of illegal permanence, the law forbids the admission of the foreign national for 10 years. In case of 180 days of unlawful stay or more, the prohibition is for three years. There is no such unlawful presence when an individual is waiting for approval of an application for change or extension of status provided that the application was filed before the visa expiration and that the individual has not been unlawfully employed (up to 120 days). However, Congress recognized that some unscrupulous individuals may not be sufficiently deterred by the aforementioned sanctions. Representative Bill McCollum (R-FL) stated, “… organized crime rings in this country, with ties to others abroad, have developed to prey upon illegal immigrants who want to come to stay in the United States.” [FOOTNOTE 27]In order to combat these “illegal alien smuggling operations” [FOOTNOTE 28]Congress expanded the scope of the Racketeer Influenced and Corrupt Organizations Act [FOOTNOTE 29](RICO) to include both the alien smuggling crimes from the Immigration and Nationality Act [FOOTNOTE 30]and the forgery and fraudulent use of passports, visas, permits, and other immigration-related documents. [FOOTNOTE 31]RICO provides serious criminal penalties for both organized crime figures and legitimate businesses engaged in proscribed unlawful activities. [FOOTNOTE 32] V. Employer Sanctions for Discrimination and Retaliation Some employers have engaged in the unfortunate practice of hiring undocumented alien workers to take advantage of a “cheap” labor force. Having no legal status to work in the United States, the workers are generally unlikely to file any kind of discrimination claim with a government agency for fear that their status will be discovered. Nevertheless, the courts have recognized the rights of these workers (despite their illegal status) against the employer that abuses the immigration law. In NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., [FOOTNOTE 33]the Second U.S. Circuit Court of Appeals stated that the interaction of the policies underlying the federal labor and immigration laws gave the National Labor Relations Board (NLRB) the power to grant back pay and other relief to workers illegally in the United States. [FOOTNOTE 34]The rule established that an employer who knowingly hires undocumented aliens cannot use immigration laws as a shield to avoid liability for an illegal retaliatory discharge of such workers. The court upheld a NLRB order that required the employer to reinstate the workers conditioned upon their obtaining appropriate documentation under immigration laws awarding them back pay from the date of their discharge. The employer, A.P.R.A. Fuel Oil Buyers Group, Inc., had illegally discharged the workers, Victor Benavides and Alberto Guzman, in 1990 for their involvement in a union organization drive. Upon hiring the men in 1990, A.P.R.A. Fuel Oil had known that each had lacked the required green card to work in the United States and that it was illegal to hire them under immigration laws. The Second Circuit upheld the NLRB’s findings on the unlawful discharge issue in 1994. The court found that the remedy fashioned in the case “properly balanced the various federal policies implicated by the employer’s illegal actions.” [FOOTNOTE 35] Thus, at least some courts will not let employers use immigration laws to undermine the enforcement of the National Labor Relations Act by precluding a monetary damage remedy under the NLRA. By contrast, at least one court has ruled that this does not mean that a violation of the NLRA will entitle an illegal alien to avoid prosecution under the Immigration laws. Thus, in Montero v. INA, [FOOTNOTE 36]the Second Circuit ruled that an illegal immigrant may not avoid deportation based on an employer’s unfair labor practice. In that case, the employer voluntarily reported to the INS that certain of its employees may have been illegal aliens. It appeared that this was in retaliation against the employees for their union organizing activities. Congress intended the National Labor Relations Act to protect undocumented workers as “an element in the federal government’s strategy to protect U.S. labor markets from the effects of illegal immigration.” Furthermore, the court expressed that IRCA was not enacted to be used to “exacerbate the appeal of illegal workers to unscrupulous employers.” Instead, the law expressly “does not reduce the protections and remedies for undocumented workers under other laws.” The court rejected the employer’s argument that none of the workers should be paid for the period during which their employment was unlawful. This is because the failure to enforce back pay remedies “would encourage employers to compare the expense of the IRCA’s fines to the expenses of the back pay and the advantage gained in resisting unions, and potentially to decide that the risk of the IRCA’s penalties were worth incurring.” [FOOTNOTE 37] In addition, the EEOC recently issued a guidance document which spells out the remedies that may be available to undocumented workers if they are the victims of illegal discrimination or retaliation under Title VII of the Civil Rights Act of 1964 as amended in 1991. [FOOTNOTE 38]The remedies that the EEOC may seek include cease and desist orders, orders for corrective measures such as harassment reporting procedures, posting notices, recruiting from non-traditional sources, and training. Further, in some cases, workers who are undocumented may be eligible for reinstatement to their old jobs, but only if they can satisfy the requirements of IRCA within a reasonable period. In some cases, undocumented workers may be eligible to receive back pay and other monetary damages. The EEOC has taken the position that the worker is eligible for back pay unless the worker was out of the country and not legally eligible to return to work during the period for which the back pay would be awarded. [FOOTNOTE 39] EEOC continues to follow a policy of enforcing cases in which retaliation against undocumented workers is evident. The Milwaukee District Office recently settled a pending national origin/retaliation lawsuit against Holiday Inn Express in Wisconsin. In that case, employees were discharged while in the process of attempting to organize a union. The employer then turned in the workers to the INS. The EEOC found that the employer’s actions were retaliatory and required the employer to pay $7,000 in back pay and $1,000 in compensatory damages to the discharged workers. [FOOTNOTE 40] VI. Legally Hiring Foreign Nationals Employers considering foreign nationals for jobs can take advantage of two legal devices that allow alien workers to work legally in the USA on a long-term (naturalization) basis and on a temporary basis (OPT — Optional Practical training and H-1B visas). A. Naturalization Persons who were not born in the United States or born to U.S. citizens may apply to become citizens through a process known as “naturalization.” In general, this process begins when a non-citizen applies for permanent residence in the United States. For many types of naturalization, someone must have been a permanent resident in the United States for three to five years. A permanent resident is a non-citizen who has been granted status as a permanent resident and has, or is waiting for, a Permanent Resident Card. This card is a document that a permanent resident carries to verify that he or she has been granted permanent residence. It was formerly called the Alien Registration Card, or the “green card.” In addition, actual physical presence in the United States for a period of at least three months is often required. B. Nonimmigrant Visa Categories It is well known that one of the most valid and reliable methods of personnel selection is asking workers to show a sample of their work. Many employers recruit at U.S. colleges and universities and offer students the opportunity to work as interns during their summer break. This gives the employer an opportunity to evaluate the candidate’s abilities. In addition, after the student graduates, Optional Practical Training (OPT) allows the prospective employee, who holds an F-1 student visa, to work for a company for up to 12 months. The OPT must be related to the individual’s major field of study. If the individual had engaged in any pre-graduation practical training, that time must be subtracted from the 12-month limit for OPT. Additionally, all OPT must be completed within 14 months after graduation. To obtain OPT, the prospective employee must complete the request approved by the foreign individual’s advisor and then apply for an employment authorization document (EAD) through the INS. Once the OPT is over, then the employer can obtain an H-1B visa. C. The H-1B visa The H-1B visa is a nonimmigrant visa. An employer can temporarily hire a foreign national in any “specialty occupation,” defined as a position that involves the theoretical and practical application of highly specialized knowledge. Certain professional occupations, such as engineers, lawyers, accountants, teachers and physicians, automatically qualify as specialty occupations. Generally, to be a specialty occupation, the position must involve complex job duties for which the employer requires a bachelor’s degree in particular fields. The employer also may be required to show that a bachelor’s degree is required for similar positions in the industry, that the position involves supervision of other professional-level employees and/or responsibility for significant budget or sales revenue, and/or that the salary level is reflective of professional standing. The person applying for H-1B status must show that he or she meets the job requirements and has a minimum of a U.S. bachelor’s degree, or equivalent. If the degree was obtained abroad, an educational credentials evaluation may be required. An individual who does not have a bachelor’s degree may provide evidence that his/her experience and other training are equivalent to a degree. To obtain the H-1B visa takes approximately six to 10 weeks from the time that the first application is submitted to the U.S. Department of Labor. An H-1B visa can be requested initially for a period of three years. After the initial three years, the employer may apply for a three-year extension for a total period of six years. Advertisement of the position and proof that it cannot find a qualified U.S. worker is not required to sponsor an H-1B visa. However, if the employee will continue working beyond the six-year limitation or desires to obtain permanent residence (“green card”), the employer is required to go through the labor certification process, which involves advertising the position and demonstrating that there are no minimally qualified U.S. workers who can fill the job. This process is very time consuming and will take 18 months or more to complete. For certain categories of employment-based immigrant visas, the labor certification process is not required or can be waived by the Immigration and Naturalization Service (INS). There are three steps to be followed to obtain an H-1B visa:

1. Filing a Labor Condition Application (LCA) with the U.S. Department of Labor; 2. Submitting a Petition for Nonimmigrant Worker to the INS; and 3. Applying for the H-1B visa at a U.S. Consulate abroad or, if the person is already in the United States, obtaining change of status.

The first step is to obtain certification of an LCA by the U.S. Department of Labor. The LCA asks for general information about the company, number of nonimmigrants sought, job titles, gross wage rates to be paid, starting and ending dates of employment, and place(s) of intended employment. The LCA requires that the employer attest to statements regarding wages, working conditions, no strikes/lockouts, and posting of notice of the application. The employer must attest that it will pay at least the higher of either the actual wage rate paid to employees of the same employer with similar job duties, experience, and qualifications or the prevailing wage rate for the position for all employers in the geographic area. The next step is to submit a Petition (Form I-129 and H supplement) and filing fee, with an employer support letter and supporting documentation, to the INS. The Petition requires that the employer agree to the terms of the LCA and states that the employer will be liable for the reasonable costs of return transportation if the alien is dismissed before the end of the period of authorized stay. Finally, after the INS approves the Petition, the prospective employee must apply for the H-1B visa at a U.S. Consulate abroad. Canadians need not obtain a visa and can apply for entry at a border crossing post- or pre-flight clearance post. Individuals currently in the United States in another valid nonimmigrant status (e.g., B-1 business visitor or F-1 student) may apply for a change of status to H-1B at the time the Petition is filed. If approved, the individual can begin employment without having to leave the United States to obtain the H-1B visa. If the individual later leaves the United States (except for visits to Canada or Mexico of less than 30 days), he or she must obtain the H-1B visa from a U.S. Consulate before re-entering the United States. The Immigration and Nationality Act [FOOTNOTE 41]sets the maximum number of H-1B visas at 115,000 for the U.S. Government’s Fiscal Year 2000 (which ended 9/29/2000). However, on October 17, 2000, President Clinton signed the “American Competitiveness in the Twenty-First Century Act.” [FOOTNOTE 42]That statute raised the limit for H-1B visas to 195,000 through FY 2003. Citing the need for more workers with high-tech skills, President Clinton challenged high-tech companies to find long-term solutions to the growing demand for workers with technical skills. Also, Section 105 of this new law makes it easier to employ H-1B workers by increasing the portability of the worker’s H-1B status. Now a worker holding an H-1B visa may work for another employer who has not yet completed the certification process so long as the new employer files a petition on behalf of that worker. Previously, workers had to leave the country if their visa expired before the INS acted on the employer’s petition. In addition, Section 103 of this new law exempts aliens employed by universities and research institutions from the numerical limits on H-1B visas. VII. Guidance for Avoiding Charges of Discrimination Because of the complexities of compliance with immigration provisions, many employers are tempted to avoid hiring foreign workers altogether. The EEOC is concerned that some employers may attempt to do this by establishing “English Language Only” rules in their workplaces. However, the EEOC has taken the position that these rules may have an adverse impact on individuals because of their race. In fact, the EEOC has prevailed against two summary judgment motions which challenged the EEOC’s ban on English-only rules. In both of these cases, Hispanic employees were discharged for violating an employer’s English-only rule. [FOOTNOTE 43] As a general rule, employers may find it advisable to adopt a policy which allows for the hiring of non-citizens and establish procedures that insure that they do not violate the discrimination provisions of IRCA and the federal civil rights laws. Table 3 summarizes some key suggestions for employers concerned about avoiding charges of discrimination against individuals based on their nationality or citizenship. This partial list of suggestions should aid employers seeking to avoid charges of unlawful discrimination. However, it’s always advisable for employers to seek advice from their own legal counsel to insure that they are in compliance with all applicable laws and regulations. Table 3 Suggestions for Avoiding Employment Discrimination Charges Do not: � pay non-citizens a lower salary because of citizenship status. � hire only those who have easily verifiable documentation such as a social security card or driver’s license. � refuse documents such as citizenship ID cards or visas. � request more documentation than necessary. � refuse to hire individuals with accents. � establish an English-only rule unless you have a legitimate business reason for doing so. � ask only some job applicants for employment eligibility (e.g., based on physical appearance) VIII. Summary Many U.S. employers are actively recruiting foreign nationals to fill vacancies in their current workforce. The administrative burden of compliance with immigration laws makes it more difficult to hire foreign workers. Employers generally may not avoid hiring all non-citizens to avoid this burden. Nevertheless, with careful foresight and planning, U.S. employers can become adequately informed about both immigration and discrimination laws. Employers can and do successfully comply with both sets of legal requirements. This article is excerpted with permission from CCH’s Journal of Employment Discrimination Law, Winter 2001 Edition. Richard A. Posthuma is on the faculty of the College of Business Administration at the University of Texas at El Paso. He earned his Master’s degree in Labor and Industrial Relations from Michigan State University in 1977, a J.D., cum laude, from Thomas M. Cooley Law School in 1992, and a Ph.D. in Organizational Behavior and Human Resources Management from the Krannert Graduate School of Management at Purdue University in 1999. James B. Dworkin earned his Ph.D. from the University of Minnesota in 1977. He is a professor of Organizational Behavior and Human Resources Management at Purdue University and Chancellor of the Purdue University North Central Campus. Mariana Monteiro earned a J.D. (cum laude) from the National University of La Plata, Buenos Aires, Argentina (1992), an M.A. in Latin American Studies (1997) and an M.S. in Human Resource Management (1999) from Purdue University. She is a Human Resources Manager at the General Electric Company. The opinions in this article are entirely those of its authors and do not reflect the views of the General Electric Company. GLOSSARY OF TERMS Green Card: a term used to refer to one type of identification that aliens in the United States obtain from the Immigration and Naturalization Service. IIRIRA: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996. INS: The U.S. Immigration and Naturalization Service. IRCA: The Immigration Reform and Control Act. I-9: A form used by employers to verify the identity and employment eligibility of employees. Naturalized Citizen: Someone born outside the United States who becomes a citizen of the United States by following the prescribed procedures. NAFTA: The North American Free Trade Agreement. Incorporated in legislation passed by Congress, the plan facilitates the free trade of goods across the borders of Canada, the United States and Mexico. Permanent Resident Card: The current term used to refer to the document persons carry to identify themselves as permanent resident aliens. It was formerly known as the “green card.” Passport: A document issued to a citizen which identifies him or her as a citizen of that country. For instance, a Peruvian citizen may obtain a Peruvian passport for travel to the United States. Port-of-Entry: A city where an alien legally entered the United States or was granted a change of status to become a Permanent Resident. State Department: A U.S. government agency that deals with immigration issues involving those seeking political asylum. Visa: A document which entitles someone who is not an U.S. citizen to be in the United States for a specified purpose and/or time. Visa Types: B-1: Issued by U.S. consular office abroad after it is shown by the visitor that he or she has a foreign residence, intends to enter the United States for a limited period of time, and will engage solely in legitimate business activities for which the visitor will not be paid in the United States. E-2: Issued to certain investors responsible for development and direction of an enterprise in the United States — generally for four to five years and can be renewed. F : Issued to foreign students; the time limit depends on the plan of study. H-1: Allows aliens of “distinguished merit and ability” to enter and work in the United States on a temporary basis. These persons include architects, engineers, lawyers, physicians and teachers. H-2A: Issued to agricultural workers. H-2B: Issued to nonagricultural workers to perform services on a temporary basis that does not adversely affect the wages and working conditions of U.S. workers. The limit imposed by the 1990 Act is 66,000 H-2B visas. J: Issued for “exchange visitors.” L-1: Allows a qualifying multinational business to make intra-company transfers of foreign persons to the United States for up to 5 years when the person has “specialized knowledge.” O and P: Applies to professional entertainers and athletes. Q: New category created by 1990 Act that allows private business to bring individuals into the country for cultural events. R: New category created by 1990 Act that facilitates the temporary entry of religious workers. ::::FOOTNOTES:::: FN1Office of Policy and Planning, U.S. Department of Justice, Immigration and Naturalization Service, Annual Report (January 1999). FN2 SeeU.S. Commission on Immigration Reform, Becoming an American: Immigration and Immigrant Policy (Executive Summary 1997). FN3Office of Policy and Planning, U.S. Department of Justice, Immigration and Naturalization Service, Annual Report (January 1999). FN4 Id. FN5Office of the Attorney General, U.S. Department of Justice, 1997 Annual Report of the Attorney General of the United States. FN6 Id. FN7 Id. FN8U.S. Constitution, Art. 1 � 8, cl. 4. FN9 Fiallo v. Bell, 430 U.S. 787 (1977). FN118 U.S.C. �1324(b). FN128 U.S.C. �1324(a). FN13OMB No. 1115-0136, Form I-9 (Rev. 11-21-91). FN14U.S. Department of Justice, Immigration and Naturalization Service, Handbook for Employers. ISBN 0-16-048040-X. FN178 C.F.R. Part 274a.2. FN168 U.S.C. � 1324c (1994). FN18Interim Designation of Acceptable Documents for Employment Verification, 62 Fed. Reg. 51001, at 51002 (preamble) (September 30, 1997), INS No. 1818-96, RIN 1115-AE 94 (Interim rule codified at 8 C.F.R. Part 274a.2.). FN19North American Free Trade Agreement (NAFTA), December 12, 1992, United States-Canada-Mexico, 101 Stat. 2057. See also, The North America Free Trade Agreement between the Government of the United States, the Government of Canada, and the Government of the United Mexican States, Dec. 17, 1992, 1994 Can.T.S. No.2, 32 I.L.M. 605 (1993) [hereinafter NAFTA[. FN20North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 STAT. 2057 (December 8, 1993.) FN21 See, Immigration and Nationality Act [hereinafter INA[ �212(a), 8 U.S.C. �1182(a)(1993). FN22INA, �101(a)(15)(B), 8 U.S.C. �1101(a)(15)(B)(1993). FN23United States-Canada Free Trade Agreement Implementation Act of 1988, Pub. L. No. 100-449, 102 Stat. 1851 (September 28, 1988, as amended by Pub. L. No. 101-207, �1 (b), Stat. 1833 (December 7, 1989)). FN24 See, NAFTA Art 1603, para 1, NAFTA Annex 103, Sections A, B, C, & D. FN25NAFTA, Art 1603, para 2. FN26�214(j) of the INA, 8 U.S.C. �1182(j)(1993). FN27141 Cong. Rec. H1588 (daily ed., Feb. 10, 1995). FN28H.R. Rep. No. 104-22, at 9 (1995). FN2918 U.S.C. ��1961-1969 (1994). FN30INA, 8 U.S.C. �1101, et. seq. (1994). FN31Pub. L. No. 104-132, Title IV � 433, 100 Stat. 1214, 1274 (1996), amending 18 U.S.C. �1961(1). FN32 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499-500. (1985). FN33134 F.3d 50, 157 L.R.R.M. 2001 (2d Cir., 1997), remedial order enf’d. 1998 U.S. App. LEXIS 18768 (July 14, 1998). FN34159 F.3d at 58. FN35 Sure-Tan, Inc.467 U.S. 883, 81 L. Ed. 2d 732, 104 S. Ct. 2803 (1984). FN36124 F.3d 381 (2d Cir. 1997). FN37134 F.3d 50, 56. FN38U.S. Equal Employment Opportunity Commission, Enforcement Guidance — Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws (October 22, 1999). FN39 Id. FN40Rapport, “Undocumented Workers Guidelines, Labor and Employment Lawnotes,” (Council of Labor and Employment Law, State Bar of Michigan) Vol. 10(2), 10-11 (Summer, 2000). FN418 U.S.C. �1184, et. seq. FN42PL 106-313, October 17, 2000, (S 2045), 114 Stat 1251. FN43 EEOC v. Premier Operator Servs, Inc., 75 F.Supp. 2d 550, (N.D. TEX., 1999), EEOC v. Synchor-Start Products, Inc., 29 F. Supp. 2d 911 (N.D. ILL, 1999).

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