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
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
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.
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
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.