USA – CALIFORNIA Law and Practice Contributed by: William C. Martucci, Laura M. Booth, Ashley N. Harrison and Carrie A. McAtee, Shook, Hardy & Bacon LLP
4.2 Registration Requirements for Foreign Workers If an employer employs foreign workers, special pro - cedures need to be followed. The employer may need to offer immigration sponsorship for the employee, including visas. For non-immigrants, common visas include H-1B (specialty occupation worker), L-1 (intra - company transfer), and TN Professionals. For immi - grants, three steps are typical: the employee must have a permanent labour certification with the DOL, an immigrant visa petition filed with the USCIS, and the foreign national’s permanent resident status must be granted. Common immigrant categories include EB-1, EB-2, EB-3, EB-4, and EB-5. California does not have restrictions for or against mobile work. But, California’s various employment regulations still apply to remote workers. Regulations in the following categories often have novel or over - looked applications to remote employees: • wage and hour law; • safety regulations; • employee reimbursement requirements; and • privacy regulations. 5. New Work 5.1 Mobile Work California’s Industrial Welfare Commission (IWC) wage orders apply broadly to employment within the state, including to remote employees. These wage orders require employers to pay employees for all hours worked and define “hours worked” as the time dur - ing which an employee is subject to the employer’s control – including when an employee performs duties at home. California employers are required to provide safe work environments, even to remote employees. This can include addressing ergonomic workstations through the use of certain chairs, desks, and computer equip - ment. California Labor Code, Section 2802 requires employ - ers to reimburse employees for necessary and reason -
who are unauthorised to work in the US. The IRCA also holds the employer responsible for confirming the employee’s eligibility. (Public Law No 99-603, 100 Stat. 3359 (1986).) Under the IRCA, all employers must complete an Employment Eligibility Verification Form (Form I-9) for all current employees. Further, under the IRCA, employers must maintain those forms on file for either three years from the date of hire or one year after employment ends, whichever is longer. Because employers may not directly ask about a can - didate’s national origin, citizenship, or immigration status during the recruitment process, they must use neutral questions to determine whether the candidate requires immigration sponsorship to begin working or to continue employment in the future. The Immigration and Employee Rights Section of the US’ Civil Rights Division (IER) developed two questions that employ - ers may ask candidates to determine if immigration sponsorship is needed: • Are you legally authorised to work in the US? • Do you now, or will you in the future, require immigration sponsorship for work authorisation (for example, H-1B status)? Some foreign nationals may have an employment authorisation document (EA), including: • individuals with a pending adjustment of status application, seeking to adjust their status from non-immigrant to green card; • certain international entrepreneurs; • individuals with Temporary Protected Status (TPS); • individuals with Deferred Action for Childhood Arrivals (DACA); • certain asylum applicants; and • certain students, including students authorised for practical training in their field of study. However, California enacted a law prohibiting local government E-Verify mandates for private employ - ers. (Assembly Bill 1236, 2011–2012, Reg. Sess. (Ca. 2011).)
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