I-9/ IRCA Compliance
The IRCA (Immigration Reform and Control Act of 1986) established the employer’s requirement to complete a Form I-9 to confirm an employee’s legal right to work in the U.S. within 3 business days of hire. This requirement applies to any employee hired after November 6, 1986. To confirm work authorization, the employer reviews the documents presented by the employee to confirm the person’s identity and employment eligibility. The employer cannot request the production of a specific document. Instead, the employee is free to present documentation from the list promulgated by the Department of Homeland Security, as appropriate to his or her circumstance. A refusal to accept documents of the type listed as acceptably by DHS, or requesting documentation beyond what the law requires, can subject the employer to liability on the basis of national origin discrimination.
Mergers, Acquisitions and Reorganizations
Mergers, acquisitions, spin-offs and other types of reorganizations can impact a company’s ability to continue to employ a foreign worker in a lawful status. The specific nature of the transaction may affect persons in H, L, E or TN status differently. Changes in the corporate structure can also impact the employer sponsored permanent residence process. Involving immigration counsel prior to the execution of the change can maximize the company’s ability to facilitate a smooth transition.
Foreign worker access to certain technologies may be deemed to be an export, as this access may lead to the transfer of knowledge to a non-U.S. entity. For some technologies, foreign worker access if freely allowed, while in other cases access may be prohibited. Finally, there are limited cases in which access may only be allowed after an export license has been obtained. The extent to which these restrictions apply can vary based on citizenship, the specific immigration status of the foreign worker. Permanent residents may be treated differently than citizens or nonimmigrant workers regarding these restrictions.
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