Bar Bulletin

September, 2004

 Bar Bulletin Focus

Immigration Law    

The Roles of Various Agencies in Employment-Based Immigration
By Sheela Murthy and Carla V. O'Donoghue

Those not familiar with immigration law may believe that the Immigration and Naturalization Service (INS) is the only (or at least the primary) government agency involved in the immigration process. What many may not realize is that the INS was never the only agency with exclusive control over immigration matters. Formerly located within the U.S. Department of Justice, the INS no longer exists, having been replaced in March 2003 by three separate agencies (denoted below with asterisks) under the umbrella of the U.S. Department of Homeland Security. The various federal government agencies involved in approving immigration petitions, however, are not limited to these three agencies.

This article highlights the federal government agencies involved when an employer seeks to bring a foreign national to the U.S. to work on either a temporary or permanent basis. These major agencies have been listed in the order in which the employer or employee may have to deal with the agency while processing papers.

U.S. Department of Labor

The U.S. Department of Labor (DOL) is responsible for protecting the rights of U.S. workers. Generally, the term “U.S. workers” refers to U.S. citizens, permanent residents and certain other applicants for asylum. In an employment based application, generally, the first step is to obtain an approval from the DOL.

Temporary worker approval that begins at the DOL includes H1Bs (specialty occupation workers, such as software engineers), H2As (agricultural workers), and H2Bs (seasonal or peak load workers, such as lifeguards). The DOL may also conduct investigations to determine whether an employer that has hired a temporary worker is paying that worker the proper wage or providing the benefits that were stated on the company’s application to the DOL.

The primary function for the DOL in a permanent application is to certify that hiring of the foreign national will not adversely affect the wages and working conditions for U.S. workers by certifying that there are not sufficiently qualified available U.S. workers and that the employer will pay the required prevailing wage for the position.

Citizenship and Immigration Services*

U.S. Citizenship and Immigration Services (USCIS) is the agency responsible for processing immigration applications or petitions for benefits. The USCIS receives petitions for virtually all would-be temporary workers in the U.S. and processes the immigrant petitions for permanent employees.

Examples of commonly approved temporary worker petitions approved by the USCIS are the H1Bs, L1s (intracompany transferees), Os (extraordinary ability employees), Ps (performers and athletes), Rs (religious workers) and TNs (certain temporary workers from Canada or Mexico). While there are exceptions, most employment-based applications or petitions require an approval from the USCIS.

U.S. Department of State

Assuming that the temporary worker needs to enter the U.S. to begin work, he or she will generally need a visa from the U.S. Department of State (DOS). The DOS operates worldwide through the U.S. Consulates or embassies where visa officers issue both temporary (non-immigrant) and permanent (immigrant) visas to applicants. Most citizens of Canada or Mexico are exempt from the requirement to obtain a visa stamp at the DOS before being able to start working in the U.S.

Historically, many temporary workers had been able to use a “drop box” process, which permitted them to obtain a visa without appearing in person to apply for the visa. This option is generally no longer available in the post-September 11 world, as biometric requirements have become increasingly important to the immigration and security process. Today, an overwhelming majority of visa applicants from most of the world will need a personal interview and a visa stamp in the passport before being eligible to obtain the visa and enter the U.S. to work here.

Customs and Border Protection*

At an U.S. airport, land port or seaport, the Customs and Border Protection (CBP) inspector will determine whether the temporary worker or immigrant is allowed to enter the U.S. The CBP agent will generally review the USCIS approval notice and sometimes review a copy of the petition (which may include a DOL approval) and the temporary worker’s passport (which should include the visa from the DOS). The CBP agent needs to ensure that the temporary worker’s information is properly entered into the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT), a system that monitors whether a foreign national overstays in the U.S. Those subject to additional interrogation are sent into secondary inspection for a more careful review and analysis of the documents to determine eligibility to enter the U.S. and work here or live here permanently.

Immigration and Customs Enforcement*

Immigrations and Customs Enforcement (ICE) is primarily responsible for investigating violations of U.S. immigration laws. ICE also takes legal action against those who may overstay the period authorized by the CBP Inspector and/or the USCIS.

For example, under law, a U.S. employer must file the appropriate paperwork to bring a temporary worker to the U.S. The employer must retain proof of the temporary worker’s work authorization, maintain a system to verify when the temporary worker’s authorization to work expires and file if applicable appropriate papers to extend the work status. Either a DOL agent or an ICE agent may investigate whether an employer or employee has committed any immigration related violations.

Various Other Federal Government Agencies

Though the above agencies are the primary players in the field of immigration law, there are a host of other important agencies that cannot be ignored. When the temporary worker applies for a visa through the DOS, the DOS looks at a number of factors to determine whether any special security checks are needed. If the DOS determines that certain security checks are required, the consulate will send a cable to multiple government agencies who must inform the consulate whether they believe this person will pose a security threat to the U.S. Though all of the government agencies are not known, these checks are believed to be sent to the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA) and the Bureau of Industry and Security (BIS) in the Department of Commerce. Without a security clearance from all of these and other interested government agencies, the temporary worker’s visa will likely be rejected.

The temporary worker should also seek a Social Security Number from the Social Security Administration (SSA). The SSA recommends that the temporary worker wait to apply for the Social Security Number until the temporary worker has been in the U.S. for 10 days. The temporary worker is permitted to begin working for the employer without the Social Security Number but should provide it to the employer after obtaining it.

Deemed Export Licenses

Though many people are not aware of this requirement, the BIS requires a “deemed export” license for certain temporary workers to work in the U.S. Temporary workers from certain countries who work in fields that are considered “sensitive technologies” or those working in certain technologies that may have a dual use, such as both peaceful and wartime uses, may be required to obtain a deemed export license before the worker located in the U.S. is allowed to work on a project in the U.S. This means that even if the temporary worker’s application has been approved by the DOL and the USCIS, the temporary worker will not be able to work on any project that requires the deemed export license until the license is approved.

Conclusion

An overview of the various agencies involved makes it clear that each agency may need something slightly different from the employer and/or the worker in order to complete its piece of the immigration puzzle. Client intake must not be limited to questions that will only affect one federal government agency. The key to a successful immigration practice is to understand the various players in this field, their requirements and mandates and how best to present the required information in the manner most effective and conducive to obtaining an approval.


Sheela Murthy is the Founder and Managing Attorney of the Law Office of Sheela Murthy, P.C., a national immigration law firm. Carla V. O’Donoghue is an associate at the firm.

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