New York Employment Lawyer Blog

Pursuant to federal law, it is unlawful for any employer to knowingly hire a worker who is not authorized to work in the United States. To comply with the law, employers are required to verify the identity and employment eligibility of all employees by completing the I-9 Employment Eligibility Verification Form ("Form I-9") for each new hire. The law requires that the employer complete a Form I-9 for all new hires, regardless of whether employer believes the new hire is undocumented. In fact, employers are required to verify the employment eligibility of all employees within three days of hire and must retain the completed Form I-9 for at least three years or one year after employment terminates, whichever is later.

The Immigration and Nationality Act ("INA") contains an anti-discrimination provision, which protects employees against document abuse discrimination as it relates to Form I-9. Document abuse discrimination occurs when an employer improperly requests that an employee produce more documents than are required by Form I-9 to establish the employee's identity and employment authorization. It can also occur when an employer improperly requests that an employee present a particular document, such as a "green card," to establish identity and/or employment authorization, when an employer improperly rejects documents that reasonably appear to be genuine and belong to the employee presenting them, or when an employer improperly treats groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound "foreign" to produce particular documents the employer does not require other employees to produce.

As long as the documents presented are listed on the list of acceptable documents and appear to be genuine on their face and to relate to the person, the employer must accept them. Failure to do so constitutes illegal document abuse discrimination.

The INA's provision against document abuse discrimination covers employers with 4 or more employees, and protects all employment-authorized individuals.

If an employer is found to have engaged in document abuse discrimination under the INA, the employer may be ordered to hire or reinstate, with back pay, individuals directly injured by the discrimination, post notices to employees about their rights and about employers' obligations, and/or educate all personnel involved in hiring about complying with the anti-discrimination laws. The court may also award attorney's fees to prevailing parties if it determines that the losing parties' argument is without foundation in law and fact.

For more information and/or assistance with respect to the I-9 process as well as the anti-discrimination provisions contained in the INA, please contact a New York employment attorney today.

Under this country's H-1B visa program (which was created by the Immigration and Nationality Act ("INA")), employers may hire non-immigrant professionals to work temporarily in specialty occupations.

As part of this program, the employer must submit a Labor Condition Application ("LCA") to the US Department of Labor. The LCA specifies, among other things, the job, its salary, the employment period, and its geographic location. The employer also attests that it will abide by the LCA program's requirements.

The employer attests in the LCA that it will pay the H-1B non-immigrant professional the greater of the job's actual wage rate or the prevailing wage rate throughout the entire period of authorized employment, and will pay for non-productive time. The prevailing wage rate is the average wage paid to professionals who are similarly employed in the occupation listed on the LCA, at the location where the H-1B employee will work. If the employer has other workers with "substantially the same duties and responsibilities" as the H-1B worker who earn more than the area's "prevailing wage," their compensation becomes the "actual wage" the H-1B worker must receive. Should the employer have no other employees with comparable duties and responsibilities, it is free to pay the H-1B worker more than the area's prevailing wage, which becomes the H-1B worker's "actual wage."

As another condition of an LCA, the employer attests that it offers benefits to its H-1B non-immigrant workers on a par with those offered to U.S. workers it employs in similar jobs. As one example, health insurance plans must be offered "on the same basis and in accordance with the same criteria" that the employer offers to American workers.

When it signs the LCA and submits it to the Department of Labor, an employer represents that the statements in its LCA are accurate and acknowledges that it will comply with its obligations under the H-1B visa regulations.

The INA authorizes the Department of Labor "to determine whether an employer has engaged in misrepresentation or failed to meet a condition of the LCA," and to impose fines and penalties on culpable employers.

Whistleblower Protections

Those who employ H-1B workers may not discriminate against an employee in any manner for complaining internally (to the employer) or externally (to the government) about violations of H-1B program requirements. Under Title 20 of the Code of Federal Regulations, "No employer subject to this subpart . . . shall intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against an employee . . . because the employee has . . . [d]isclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation . . . of the INA . . . or . . . [c]ooperated or sought to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements . . . of the INA.

It's extremely important that employers not retaliate against an employee who raises issues with respect to misrepresentations made by the employer in an LCA. Also, any employee who feels that he/she was retaliated against for complaining about misrepresentations made in an LCA or for complaining about the employer's failure to meet a condition specified in the LCA should file a complaint with the US Department of Labor, Wage and Hour Division.

We also always recommend that employers consult with a New York City employment attorney before terminating or disciplining an employee who has recently complained.