What this toolkit is for, and who should use it

Immigration compliance fails in two directions. Employers miss a deadline that has no cure — an H-1B extension that had to be filed a year before the six-year limit, a certified labor certification that expired at 180 days — and employees fall out of status. Or employers run an I-9 process that has been technically defective for years across hundreds of forms, and learn of it from a Notice of Inspection giving three business days to produce.

This toolkit is for a human resources leader, a general counsel, and outside counsel building or auditing a program.

Roadmap at a glance

  1. The threshold question — what does this person need.
  2. H-1B and its compliance obligations.
  3. Other nonimmigrant categories.
  4. Ongoing nonimmigrant compliance.
  5. The permanent residence decision and category selection.
  6. PERM — prevailing wage, requirements, and recruitment.
  7. Filing, audit, and the immigrant petition.
  8. The queue and what it does to a workforce.
  9. I-9 verification.
  10. E-Verify and remote verification.
  11. Audits, site visits, and enforcement.
  12. The internal program.

Stage 1 — The threshold question

  • Is the person already authorized? A citizen, permanent resident, asylee, refugee, or holder of an employment authorization document needs no sponsorship — and asking about status beyond authorization to work is an unfair immigration-related employment practice.
  • What is the role, and what does it require? A specialty occupation, a managerial transfer, extraordinary ability, or a treaty-based investment each maps to a different category.
  • Where is the person now, and what is their current status and its expiration.
  • What is the timeline? A cap-subject H-1B may not start until the following October; an L-1 or O-1 can be filed at any time.
  • What is the long-term plan? If permanent residence is the objective, the nonimmigrant choice should support it — an L-1A leads to EB-1C without a labor certification, which is materially faster than the PERM route.

Resources

Stage 2 — H-1B

  • Specialty occupation requiring theoretical and practical application of a body of highly specialized knowledge and a bachelor's degree or higher in the specific specialty, or its equivalent.
  • The annual cap and the electronic registration and selection process, with an exemption for advanced-degree holders and for cap-exempt employers — institutions of higher education, related or affiliated nonprofit entities, and nonprofit or governmental research organizations.
  • Labor Condition Application certified by the Department of Labor before filing, attesting to payment of the higher of the actual or prevailing wage, to working conditions, to the absence of a strike or lockout, and to notice.
  • Notice posted at the worksite or provided electronically, for ten days.
  • The public access file — maintained within one business day of filing and retained for the required period, containing the LCA, wage documentation, the actual wage memorandum, the notice, and a summary of benefits.
  • Required wage payment from entry into employment, including during nonproductive time attributable to the employer ("benching," which is a violation).
  • Return transportation on a dismissal before the end of the authorized period.
  • Amendments for material changes, including a change in worksite outside the area of intended employment.
  • Portability permitting a change of employer on the filing of a new petition.
  • The six-year limit, with extensions available under AC21 as described below.

Stage 3 — Other categories

  • L-1A and L-1B for intracompany transferees who worked abroad for a qualifying related entity for one year in the preceding three, in a managerial or executive capacity or with specialized knowledge. Maximum periods of seven and five years, with no AC21 extension, which makes the timeline to EB-1C important.
  • O-1 for extraordinary ability in the sciences, arts, education, business, or athletics, requiring sustained acclaim and satisfaction of the regulatory criteria, with an advisory opinion and an agent or employer petitioner. No cap and no maximum period, renewed in increments.
  • TN for Canadian and Mexican professionals in listed occupations, available quickly and renewable indefinitely, but without dual intent.
  • E-1 and E-2 treaty trader and investor categories, requiring treaty nationality and, for E-2, a substantial at-risk investment in a real operating enterprise the investor develops and directs. Spouses are authorized to work incident to status.
  • H-1B1, E-3, and R-1 for specific nationalities and roles.
  • F-1 optional practical training and the STEM extension, and cap-gap relief for students with pending H-1B petitions.
  • B-1 is not a work authorization, and using it for productive work is a common and serious error.

Resources

Stage 4 — Ongoing nonimmigrant compliance

  • Track every expiration: status, visa validity, passport, employment authorization documents, and I-94 admission periods.
  • File extensions early — 180 days before expiration where permitted — because processing times vary and premium processing is not always available.
  • Amend on material change: worksite, position, duties, hours, or a corporate restructuring that changes the petitioner.
  • Maintain the public access file and the wage records.
  • Do not reduce hours or place an H-1B worker in unpaid status without either a bona fide termination or a filed amendment.
  • Effect a bona fide termination properly — notify the employee, withdraw the petition, and offer return transportation — because the wage obligation continues otherwise.
  • Travel requires a valid visa for reentry; a change of status granted in the United States confers status but not a visa.
  • Route any change in title, location, compensation, or duties for a sponsored employee through immigration counsel before it is effected. This single control prevents most status problems.

Stage 5 — The permanent residence decision

  • Evaluate the no-PERM categories first: EB-1A extraordinary ability (self-petitioning); EB-1B outstanding researcher; EB-1C multinational manager or executive; and the EB-2 national interest waiver, which self-petitions and has expanded considerably. Each saves twelve to eighteen months.
  • EB-2 versus EB-3 is a strategic choice, not merely a classification; the queues move independently and sometimes invert.
  • Consider cross-chargeability to a spouse's country of birth, which can move a beneficiary out of an oversubscribed queue entirely and is frequently overlooked.
  • Start early. The priority date is the place in line, and a year of delay can be several years of delay at the end.

Stage 6 — PERM

  • Prevailing wage determination on Form ETA-9141, with the requirements stated carefully because they drive the wage level.
  • The requirements must be the employer's actual minimum requirements, normal to the occupation or justified by business necessity, and generally may not include experience the beneficiary gained with the sponsoring employer in the same or a substantially comparable position.
  • Alternate requirements trigger the Kellogg obligation to state that any suitable combination of education, training, or experience is acceptable.
  • Recruitment: a state workforce agency job order for 30 days; two Sunday newspaper advertisements (or a professional journal for one); a notice of filing posted 10 consecutive business days; and, for professional occupations, three additional steps from the regulatory list.
  • Timing: all recruitment within 180 days before filing; at least one Sunday advertisement and the notice more than 30 days before filing; and a 30-day quiet period after the last step.
  • Review every résumé and reject only for lawful, job-related reasons tied to the stated minimums, interviewing where the résumé is ambiguous, and considering whether a missing skill could be acquired through reasonable on-the-job training.
  • The recruitment report, signed, summarizing the steps and the reasons for each rejection, retained with the résumés.
  • Layoffs in the occupation or a related occupation within six months require notification and consideration of the affected workers.

Resources

Stage 7 — Filing, audit, and the immigrant petition

  • Form ETA-9089 filed electronically with nothing attached; the employer attests and retains the file for five years.
  • Certification is valid for 180 days, within which the I-140 must be filed. Calendar it.
  • Audit requests the documentation on a short, non-extendable deadline. Assemble the audit file at filing, not when the audit arrives.
  • Supervised recruitment is a serious development adding many months.
  • Form I-140 establishing that the beneficiary met the requirements as of the priority date — with experience letters on letterhead, signed, describing dates, title, and duties — and the employer's ability to pay from the priority date.
  • Collect experience letters at hire. Obtaining one six years later from a departed supervisor at an acquired company is the most avoidable delay in the process.
  • Premium processing available for most employment-based I-140s.

Stage 8 — The queue

  • The priority date is the beneficiary's place in line, and it is portable to a later petition, including one filed by a different employer.
  • The Visa Bulletin governs when adjustment or consular processing may proceed, by category and country of chargeability, with per-country limits producing waits that in some categories exceed a decade.
  • Dates can retrogress.
  • AC21 extensions keep the population in status: one-year increments where a labor certification or I-140 was filed at least 365 days earlier, and three-year increments where an I-140 is approved but a visa number is unavailable. Calendar both milestones from the beginning.
  • AC21 portability permits a change of employer after the I-485 has been pending 180 days, to a same or similar occupational classification.
  • Dependent consequences: an H-4 spouse's employment authorization depends on an approved I-140 or an AC21-based extension, and children age out at 21 subject to the Child Status Protection Act calculation — which should be modeled with actual dates for every sponsored family.
  • Communicate honestly about the timeline. Most attrition in this population comes from employees told "we're working on it" who then heard nothing for two years.

Stage 9 — I-9 verification

  • Section 1 completed by the employee no later than the first day of employment; Section 2 by the employer within three business days of the start date.
  • The employee chooses which documents to present from the Lists of Acceptable Documents. Do not specify, do not request more than required, and do not reject documents that reasonably appear genuine — each is an unfair immigration-related employment practice under 8 U.S.C. § 1324b.
  • Reverification in Section 3 or on a new form before the expiration of a temporary work authorization — never for a permanent resident card, and never based on citizenship status.
  • Retention: the longer of three years from the date of hire or one year after employment ends, stored separately from personnel files.
  • Corrections: line through the error, enter the correct information, and initial and date the change. Never erase, never white out, and never backdate.
  • Use the current version of the form, and re-verify that after every revision.
  • Self-audit annually using a documented methodology applied to all forms or to a neutral sample, correcting properly and documenting the process.

Resources

Stage 10 — E-Verify and remote verification

  • Required for federal contractors with the FAR clause and in a number of states; voluntary otherwise, and an enrollment commitment once made.
  • Create the case within three business days of the start date, and never prescreen before an offer is accepted.
  • Tentative nonconfirmation: notify the employee privately, provide the referral notice, and do not take adverse action while the case is pending. Terminating on a tentative nonconfirmation is a violation.
  • Do not use E-Verify selectively by national origin or perceived status.
  • The alternative remote verification procedure is available only to employers enrolled and in good standing in E-Verify, and must be applied consistently — either to all employees at a site, or to all remote employees under a documented policy.
  • Retain the case verification number with the I-9.

Stage 11 — Audits, site visits, and enforcement

  • A Notice of Inspection gives three business days to produce I-9s and supporting records. Have a designated responder and a copy set ready.
  • Engage counsel immediately, request the full scope in writing, and produce exactly what is requested.
  • Outcomes: a notice of suspect documents, a notice of technical or procedural failures with ten business days to correct, a warning notice, or a notice of intent to fine with penalties assessed per violation and adjusted for the substantive-to-total violation rate, business size, good faith, seriousness, unauthorized workers, and history.
  • Knowingly hiring or continuing to employ unauthorized workers carries far higher penalties and potential criminal exposure.
  • USCIS site visits under the Fraud Detection and National Security program for H-1B and L-1 petitioners: confirm the worksite, the job duties, the wage, and the beneficiary's presence. Prepare the receptionist and the manager, and have the public access file accessible.
  • Department of Labor investigations of LCA obligations, which can be triggered by a complaint and which reach wage, benching, and public access file compliance.
  • Do not obstruct, alter records, or coach employees. Each converts a civil matter into a criminal one.

Stage 12 — The internal program

  • A written sponsorship policy: who is eligible, when the process begins, which categories the company pursues, what costs the company pays (noting that labor certification costs must be borne by the employer), and what happens on resignation or termination mid-process.
  • A single tracker with, for each sponsored employee: current status and expiration, the six-year H-1B date, the 365-day AC21 milestone, the PWD request and issuance, recruitment dates, the PERM filing and certification, the I-140 filing and approval, the priority date, the category and chargeability country, and the I-485 status. Reviewed monthly.
  • Calendared hard deadlines with no cure: the 180-day PERM validity, the audit response, the H-1B six-year limit, and the 365-day filing requirement.
  • Coordination with HR processes so that reductions in force, promotions, transfers, remote work approvals, and title changes route through counsel first.
  • Experience letters collected at hire.
  • An audit file assembled at PERM filing and retrievable in a day.
  • Annual I-9 self-audit and E-Verify user recertification.
  • Budget realistically, including for an audit or a refiling in a meaningful percentage of cases.

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This toolkit is educational and not legal advice. Immigration processing times, forms, agency policy, and Visa Bulletin movement change frequently and without notice, and individual eligibility depends on facts specific to each case. Consult qualified immigration counsel before filing or responding to an inspection.