Employment Authorization - Who is really legal to work?

Over the last two years immigration and employment authorization has been a hot topic in the news. When employers are faced with a variety of visas and work documents sometimes it can be hard to verify who is really legal to work, and unfortunately the guidelines given in the I-9 Employer Handbook can be more confusing then helpful.

Here are a few important distinctions between different statuses and visas and some tips on how to make sure the employees you are hiring and continuing to employ are really legal to work.


Not all Aliens need a Work Visa

Here is a list of some aliens who do not need an actual employment authorization document (EAD) to work as they have been granted the ability to work as part of their status:

A Lawful Permanent Resident Alien – please note even though there may be an expiration date on the card itself this just shows that the card must be renewed, the status and ability to work does NOT expire with the card.

A Temporary Resident Alien – same rule for expiration date for a permanent resident alien applies.

Asylees who have been granted asylum in the US. Increments are usually granted in 5 year blocks and like the Permanent Resident Alien the expiration date on the Form does not mean the status to work has expired just that the document needs to be renewed.


Some Common Visas and Their Limitations:

F1- This visa is for non-immigrant students who has valid student status. They are ONLY authorized to work for the school they currently attend.

H2B – This visa applies to positions that are temporary or seasonal and the “petitioner” must show that there are no U.S. workers who are willing or able to work in the position. The important thing to remember about this visa though is that the “petitioner” who applied for the visa for the individual is considered the employer, the individual is limited to working ONLY for that employer. So if a new applicant to your company presents an H2B visa to your company but you did not petition the government for them to work for you, then they are most likely not authorized to work.

J(1)(2) - The J-1 and J-2 visas are for an alien participating in an exchange visitor program that has been approved by the government and their dependent spouse or child respectively. The J-1 visa only authorizes the alien to work for the actual program that was approved by the government. One example of this visa might be an individual who was originally approved to work as a nanny or a summer camp counselor. This means that the individual can only be employed in the U.S. through that approving program and cannot just switch to another employer when that authorization is up. However, a dependent spouse or child on a J-2 visa is NOT as restricted in their employment.


Receipts

According to the I-9 Handbook for employers there are only 3 cases when a receipt can be accepted in lieu of an actual employment document:

1. When the document was lost/stolen/or destroyed and they have filed for a replacement.
2. A Form I-94 that has a temporary I-551 stamp and a photo. This is a temporary receipt for Permanent Resident Aliens.
3. A Form I-94 that has a refugee status stamp.

In addition, an alien who has been granted asylum or “asylee status” in the United States may show a copy of the hearing document that granted them the status for employment purposes.

Oftentimes many alien employees will re-apply for extensions of their work authorizations. These applications should normally be sent in well before their current authorization is set to expire but even with all of the best intentions an approval application can find itself languishing in the administrative labyrinth that is the United States Immigration Service. In those cases DHS does allow for an extension of their employment not to exceed 240 days but they must get an interim employment authorization document from their local USCIS office.

Also some aliens are protected under the Temporary Protected Status Program where certain work authorizations will be extended automatically for a period of time. These extension notifications are printed in the Federal Register and can be checked online (please see the Federal Register Online link on the right!).


Tips on how to check a work authorization:

Check the original documents that were/are given for I-9 employment purposes. If a visa or Form is giving look for the section that shows the Class of Visa. You will see a letter sometimes followed by a number (i.e. H1, H2B, J1, etc.). If you are legally savvy, or you think you can wade through some of the confusing language, check the visa against 8CFR Part 1273a Section 1274.12 which can be found on the www.uscis.gov website (link to the right). This is the section of the US Immigration rules that lists all of the work authorization requirements for different classes of aliens.