By Lauren Otis, Business Editor
Over the years, the system for applying for legal residency and work visas — both permanent and temporary — in the U.S. has evolved to encompass U.S. employer demand for everyone from supermodels, musicians, business executives, and high-level scientists, to migrant farm workers, construction and restaurant staff and other so-called unskilled laborers.
The system is complicated and requires money and time, often in large amounts, to successfully navigate, say Princeton-area immigration attorneys and business operators with experience of it.
Generations ago “everyone who got off the boat was legal” unless they had a criminal record or tuberculosis; now the opposite is true, said John Bleimaier, a Princeton-based immigration lawyer. “Now it’s a maze similar to the Internal Revenue Code,” he said.
”The only way you can immigrate is if you have an employer standing behind you or a close relative,” Mr. Bleimaier said.
For employment-based immigration, employers can seek “EB” visas, including the EB-1, for “foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics;” the EB-2, for “exceptional ability” in these areas; and the EB-3 visa, for professionals, skilled and unskilled workers, according to the U.S. Citizenship and Immigration Services Web site.
Those who receive such visas often do not seek permanent residency (green card) status, but may work in the U.S. for three, four or five years, then return to their home country, said Maria Juega, co-founder of Princeton’s Latin American Legal Defense & Education Fund. Unfortunately, only about 5,000 of these visas are issued for unskilled workers annually, making them virtually impossible to obtain, she noted.
A variety of nonimmigrant worker visas for temporary or seasonal workers, known as H visas, are available in limited numbers too. Among them are the H2A visa, for temporary or seasonal agricultural workers, and the H2B visa, for temporary nonagricultural workers, which is used by landscape contractors. Only 66,000 H2B visas are currently issued annually, and only in the hundreds to Princeton area businesses, Ms. Juega estimated.
For any new hire, a baseline reporting requirement for employers is to complete a U.S. Employment Eligibility Verification Form, or I-9, according to Ryan Lilienthal, a Princeton-based attorney who specializes in I-9 compliance and other immigration issues. “That is how an employer shows in good faith effectively that they have hired workers who are authorized to work,” he said.
Employers must review and record acceptable employee documents — everything from a U.S. passport, employment documents and visas to U.S. driver’s licenses and Social Security cards — but are not responsible for authenticating those documents “as long as on their face they don’t look fraudulent,” Mr. Lilienthal said.
Businesses using subcontractors who might employ illegal workers are similarly not legally responsible for verifying the subcontracting workers’ status and for immigration and work paper violations, unless they intentionally employed subcontractors who used illegals, Mr. Lilienthal said.
Regarding a recent incident in which an illegal employee of a subcontractor of the Hun School was arrested on a sexual assault charge, Mr. Lilienthal said that although Hun probably didn’t have knowledge of the employee’s illegal status this did not insulate the school from liability for his actions, resulting from his illegal status or otherwise.
In 2006 the Department of Homeland Security stepped up criminal prosecutions against employers of illegal immigrants and immigration violators. An investigative arm of the department — the U.S. Immigration and Customs Enforcement — made 4,383 criminal and administrative arrests nationally in 2006, and 4,940 in 2007, compared to 845 and 1,292 in 2004 and 2005 respectively, according to the U.S. ICE Web site.
Those with knowledge of immigration in the Princeton area said they had seen little enforcement activity targeting businesses in the area recently. ICE enforcement raids have been focussed on Princeton residences (see The Packet, Jan. 25, page 1) rather than workplaces, Ms. Juega said, a view seconded by Mr. Bleimaier.
ICE spokesman Michael Gilhooly said “I don’t have any specific information about work site data from the state of New Jersey or in your area, it is kept nationally.”
He added, “ICE doesn’t discuss its investigative activity,” but expects employers to follow the law, work within the framework of I-9 requirements and, where appropriate, avail themselves of ICE’s Mutual Agreement between Government and Employers (IMAGE) program helping employers voluntarily uncover vulnerabilities to illegal activity related to immigration status.
