Immigration

As the most sought-after nonimmigrant work visa, the H-1B visa allows U.S. employers to hire foreign nationals in temporary employment positions deemed “Specialty Occupations.” These positions must require (at a minimum) a relevant bachelor’s degree, the candidate must possess such a degree, as well as any specific experience that the position requires. In certain situations, professional-level experience may be substituted for a university degree.

As the most sought-after category of nonimmigrant work visa, the H-1B visa allows U.S. employers to hire foreign nationals in positions deemed “Specialty Occupations.”

On November 26, 2007, U.S. Citizenship and Immigration Services announced in the Federal Register that as of December 26, 2007, employers must use the new version of the Form I-9 when verifying the employment eligibility of new hires.

On August 10, 2007, the Department of Homeland Security (“DHS”) announced new regulations that will require action by employers when they receive a “no match” letter from the DHS or the Social Security Administration (“SSA”), providing notice of potentially invalid employee social security numbers or other identity documents.

High-profile enforcement raids and ongoing political debate have placed issues of illegal immigration at the forefront. As a result, employers may want to look at whether their hiring practices comply with U.S. immigration laws. An obvious place to start is by ensuring that I-9 forms are properly completed and retained for every employee.

Since the passage of the Immigration Reform and Control Act of 1986 (“IRCA”), employers have been required to verify identity and eligibility for employment of all employees hired to work in the United States. This means that employees have to provide employers with certain kinds of documents, and employers have to ensure that an Employment Eligibility Form (Form I-9) is completed for each newly hired employee, including United States citizens. There are only very limited exceptions to this requirement.

The Colorado legislature recently passed several new laws that are being touted as some of the strictest immigration laws in the country. Certain of the new laws impose responsibilities on employers in addition to those already required by the federal Immigration Reform and Control Act of 1986 ("IRCA") (pursuant to which employers complete "I-9" forms). Specifically, beginning January 1, 2007, every Colorado employer will be required to affirm, within twenty days after hiring a new employee, that (a) it has examined the legal work status of each newly-hired employee and has retained copies of the documents required by IRCA; (b) it has not altered or falsified the employee's identification documents; and (c) it has not knowingly hired an unauthorized alien. The Director of the Colorado Division of Labor may conduct random audits of Colorado employers to review employers' affirmations and records. If the Director has reason to believe that an employer has not complied with the verification and examination requirements, the Director shall request the employer to submit the required documentation to the Division. An employer who, with reckless disregard, fails to submit the required documentation or submits false documentation shall be subject to a fine of up to $5,000 for the first offense and up to $25,000 for each subsequent offense.