United States — Work Authorization & Visas

The Immigration Reform and Control Act of 1986 (IRCA), codified at 8 U.S.C. § 1324a, establishes a universal employment-verification system that applies to every employer in the United States, regardless of industry or workforce size. IRCA makes it unlawful to (1) hire an individual knowing the individual is an unauthorized alien, or (2) hire any individual without completing the verification process required by subsection (b). The statute also prohibits continuing to employ an alien after the employer knows the alien is (or has become) unauthorized with respect to such employment.

The Form I-9 obligation

All U.S. employers must properly complete Form I-9, Employment Eligibility Verification, for each individual they hire for employment in the United States. This requirement applies to every new employee hired after November 6, 1986 (the effective date of IRCA), and covers U.S. citizens, lawful permanent residents, and work-authorized non-citizens alike. The form comprises three core functions: employee attestation (Section 1), employer review and verification (Section 2), and reverification when necessary (Supplement B, replacing the former Section 3).

Employees must complete and sign Section 1 no later than the first day of employment, defined as the date the employee begins performing labor or services in return for wages or other remuneration. Employers or their authorized representatives must then examine the employee's documentation and complete Section 2 within three business days of the employee's first day of employment. If the employee will work for less than three business days, both sections must be completed by the first day of employment.

Acceptable documentation: List A or List B + List C

The Form I-9 statute requires employers to attest, under penalty of perjury, that they have verified the individual is not an unauthorized alien by examining specified documents. Employees present either one document from List A (which establishes both identity and employment authorization) or a combination of one List B document (identity only) and one List C document (employment authorization only).

List A documents include a U.S. passport, a Permanent Resident Card (Form I-551, commonly called a "green card"), an Employment Authorization Document (Form I-766), and, in limited circumstances, a foreign passport with Form I-94 Arrival-Departure Record bearing an endorsement of nonimmigrant status and work authorization. List B documents include state-issued driver's licenses and ID cards, while List C documents include Social Security cards (unrestricted) and certified birth certificates.

Employers must accept any documentation from the Lists that reasonably appears on its face to be genuine and to relate to the person presenting it. Employers cannot specify which documents an employee must present or reject facially genuine documents. Doing so violates the anti-discrimination provision in 8 U.S.C. § 1324b, which prohibits unfair immigration-related employment practices based on citizenship status or national origin.

Physical examination and retention

Employers must physically examine original documentation presented by employees; photocopies are not acceptable (except for certified copies of birth certificates). Employers enrolled in E-Verify in good standing may use an alternative procedure authorized by the Secretary of Homeland Security to remotely examine documents, but must still view the originals in a live video interaction.

Employers must retain and store Form I-9 for three years after the date of hire, or for one year after employment is terminated, whichever is later. Forms must be made available for inspection if requested by authorized U.S. government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.

Good-faith compliance defense

Section 1324a(a)(3) provides that an employer who establishes it has complied in good faith with the verification requirements has a defense against employer sanctions for knowingly hiring an unauthorized individual, unless the government can prove the employer had actual or constructive knowledge of the employee's unauthorized status. Courts and federal agencies apply a "constructive knowledge" standard: an employer who deliberately ignores red flags or fails to investigate obvious warning signs is treated the same as one who has direct knowledge.

Applicability to cross-border employers

For global-mobility teams and cross-border employers, the Form I-9 requirement applies whenever the employment relationship involves work performed in the United States, even if the employer is a foreign entity. This includes intra-company transfers, secondments, and remote workers physically present in the U.S. while employed by a non-U.S. entity. Independent contractors and their employees are not subject to Form I-9 completion by the entity contracting for their services (though the contracting company that employs them must complete I-9s), but an employer may not use a contract structure to evade the prohibition on knowingly hiring unauthorized workers.

Source: 8 U.S.C. § 1324a — Unlawful employment of aliens Source: Form I-9, Employment Eligibility Verification Source: USCIS, Completing Form I-9 Source: USCIS Handbook for Employers M-274, Who Must Complete Form I-9

The Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1101(a)(15), defines the nonimmigrant classifications under which foreign nationals may be admitted temporarily to the United States for employment. For cross-border employers and global-mobility teams, the most frequently used temporary work-visa categories are H-1B (specialty occupations), L-1 (intracompany transfers), E-1/E-2 (treaty traders and investors), and TN (NAFTA professionals for Canadian and Mexican nationals). Each category imposes distinct eligibility tests, numerical limitations, duration ceilings, and documentation requirements that employers must understand before sponsoring foreign workers.

## H-1B: Specialty occupations

The H-1B classification, established at 8 U.S.C. § 1101(a)(15)(H)(i)(b) and administered under 8 C.F.R. § 214.2(h), allows U.S. employers to temporarily employ foreign workers in specialty occupations or as fashion models of distinguished merit and ability. A "specialty occupation" is defined by statute as one that requires theoretical and practical application of a body of highly specialized knowledge and attainment of at least a bachelor's degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.

Annual numerical cap and lottery selection

The H-1B program is subject to an annual numerical limit of 65,000 new H-1B statuses or visas per fiscal year, with an additional 20,000 available for beneficiaries who have earned a U.S. master's degree or higher from an accredited U.S. institution, for a statutory total of 85,000 cap-subject visas annually. Certain employers—institutions of higher education, nonprofit entities related to or affiliated with such institutions, nonprofit research organizations, and government research organizations—are exempt from the numerical cap under 8 U.S.C. § 1184(i)(1)(A)(ii).

Because demand consistently exceeds supply, U.S. Citizenship and Immigration Services (USCIS) operates an electronic registration system each March for the subsequent fiscal year (beginning October 1). If the number of registrations exceeds the projected cap, USCIS conducts a weighted selection process effective for fiscal year 2027 forward under a final rule published December 23, 2025, which favors higher-skilled and higher-paid beneficiaries based on prevailing-wage levels tied to Occupational Employment and Wage Statistics (OEWS) data for the relevant Standard Occupational Classification (SOC) code and geographic area.

$100,000 additional fee for new H-1B petitions (September 21, 2025 Proclamation)

On September 19, 2025, a Presidential Proclamation titled "Restriction on Entry of Certain Nonimmigrant Workers" imposed an additional $100,000 payment requirement for H-1B petitions filed at or after 12:01 a.m. Eastern on September 21, 2025. This payment is a condition of eligibility for new H-1B petitions and must be paid via pay.gov before filing. The fee applies to initial cap-subject petitions and new employer petitions filed after the effective date. It does not apply to extensions of stay or amendments for existing H-1B workers, nor does it affect currently valid H-1B visa holders traveling in and out of the United States. The Proclamation contemplates that this fee will remain in effect for petitions filed through at least September 21, 2026, though further rulemaking may modify or extend it.

Labor Condition Application (LCA) requirement

Before filing an H-1B petition with USCIS, the employer must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor on Form ETA-9035E. The LCA requires the employer to attest under penalty of perjury that it will pay the foreign national at least the prevailing wage or the actual wage paid to similarly employed workers, whichever is greater, and that employment of the H-1B worker will not adversely affect the working conditions of similarly employed U.S. workers. The LCA must be posted at the worksite and made available for public inspection.

Duration and extensions

H-1B status is initially granted for up to three years and may be extended in two-year increments up to a maximum of six years. Certain H-1B holders who have reached specified milestones in the permanent-residence (green card) process may extend H-1B status beyond the six-year limit under the provisions of the American Competitiveness in the Twenty-First Century Act (AC21).

## L-1: Intracompany transferees

The L-1 classification, codified at 8 U.S.C. § 1101(a)(15)(L) and administered under 8 C.F.R. § 214.2(l), permits multinational companies to transfer employees from a foreign office to a related U.S. office, provided the employee has worked for the company (or a qualifying affiliate or subsidiary) abroad for at least one continuous year within the three years immediately preceding the petition. The L-1 category divides into two subcategories: L-1A for managers and executives, and L-1B for employees with specialized knowledge.

Qualifying relationship and continuous employment

The U.S. employer and the foreign entity must maintain a qualifying corporate relationship—parent, branch, subsidiary, or affiliate—characterized by common ownership or control. The employee must have been employed continuously for one year in a managerial, executive, or specialized-knowledge capacity with the foreign entity within the three years before the transfer. Short trips to the United States for business purposes and other brief interruptions generally do not break the continuity requirement, but prolonged absences or changes in employment status will.

L-1A: Managers and executives

An "executive" under 8 U.S.C. § 1101(a)(44)(B) is an individual who primarily directs the management of the organization or a major component or function, establishes goals and policies, exercises wide latitude in discretionary decision-making, and receives only general supervision from higher-level executives, the board, or stockholders. A "manager" under 8 U.S.C. § 1101(a)(44)(A) supervises and controls the work of other supervisory, professional, or managerial employees; manages an essential function at a senior level; has the authority to hire, fire, or recommend such actions; and exercises discretion over day-to-day operations. USCIS applies these definitions strictly and will deny L-1A petitions for individuals whose duties are primarily technical or operational rather than managerial or executive.

L-1A status is initially granted for up to three years (or one year for new-office petitions), may be extended in two-year increments, and has a maximum duration of seven years total. L-1A managers and executives are eligible for the EB-1C multinational manager/executive immigrant classification, which requires no labor certification and offers one of the fastest paths to permanent residence.

L-1B: Specialized knowledge

The L-1B classification is for employees with "specialized knowledge," defined by 8 U.S.C. § 1184(c)(2)(B) as special knowledge of the company's product, service, research, equipment, techniques, management, or other proprietary interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. USCIS interprets this standard narrowly: the knowledge must be unique to the employer and not readily available in the U.S. labor market. Generic industry expertise or knowledge that could be acquired through brief training generally does not qualify.

L-1B status is initially granted for up to three years (or one year for new offices), may be extended in two-year increments, and has a maximum duration of five years total.

Blanket L petitions

Large multinational employers that meet specific criteria—at least one year of U.S. operations, three or more domestic and foreign branches/subsidiaries/affiliates combined, and either $25 million in annual U.S. sales, 1,000 U.S. employees, or at least 10 L-1 approvals in the prior 12 months—may file a blanket L petition under 8 C.F.R. § 214.2(l)(4). Once approved, the blanket petition allows the company to transfer eligible employees through consular processing without filing individual Form I-129 petitions with USCIS for each transfer, streamlining the process significantly. Blanket L approvals are valid for three years and may be extended indefinitely.

## E-1 and E-2: Treaty traders and investors

The E-1 and E-2 classifications, codified at 8 U.S.C. § 1101(a)(15)(E), are available only to nationals of countries with which the United States maintains a treaty of commerce and navigation. E-1 classification is for individuals (and essential employees) entering to carry on substantial trade principally between the United States and the treaty country. E-2 classification is for individuals entering to develop and direct the operations of an enterprise in which the individual has invested, or is actively investing, a substantial amount of capital. Both categories require that the employer and the principal investor or trader be nationals of the treaty country. E status is typically granted for two years initially and may be extended indefinitely in two-year increments as long as the treaty enterprise remains operational and the employee continues to qualify.

## TN: NAFTA professionals

The TN classification, established at 8 U.S.C. § 1101(a)(15)(TN) and administered under 8 C.F.R. § 214.6, is available exclusively to citizens of Canada and Mexico under the United States–Mexico–Canada Agreement (USMCA, successor to NAFTA). The TN category permits entry for business activities at a professional level in one of the occupations listed in Appendix 1603.D.1 of the USMCA, which includes accountants, engineers, lawyers, scientists, and other designated professions. Most TN occupations require at least a bachelor's degree or a specified professional credential (e.g., licensure for certain medical professions). Canadian citizens may apply for TN status directly at a U.S. port of entry or through a U.S. consulate; Mexican citizens must obtain a TN visa at a U.S. consulate before entry. TN status is granted for up to three years and may be extended indefinitely in three-year increments.

## Cross-border employer considerations

For global-mobility teams, selecting the appropriate visa category depends on the employee's job duties, educational qualifications, the employer's corporate structure, the employee's nationality, and the intended duration of the U.S. assignment. L-1 is often the preferred route for intracompany transfers within an established multinational group because it imposes no educational-degree requirement for managers and executives and no numerical cap. H-1B offers broader employer flexibility (no prior foreign employment required, no qualifying corporate relationship) but is subject to the annual lottery and now the $100,000 fee for new petitions. E and TN categories serve narrower populations (treaty-country nationals and USMCA nationals, respectively) but can be extended indefinitely and do not require employer-sponsored labor certification.

All nonimmigrant work classifications require that the foreign national maintain a residence abroad that they have no intention of abandoning, although the INA expressly permits dual intent for H-1B and L-1 visa holders under 8 U.S.C. § 1184(b), meaning that the existence of an immigrant visa petition or permanent-residence application does not preclude H-1B or L-1 classification or visa issuance.

Source: 8 U.S.C. § 1101 — Definitions (nonimmigrant classifications) Source: 8 U.S.C. § 1184 — Admission of nonimmigrants Source: USCIS, H-1B Specialty Occupations Source: USCIS, H-1B Cap Season Source: U.S. Department of Labor, H-1B Program Source: USCIS, L-1A Intracompany Transferee Executive or Manager Source: USCIS Policy Manual, Volume 2, Part L — Intracompany Transferees (L) Source: 9 FAM 402.12 — Intracompany Transferees – L Visas

The Immigration Reform and Control Act of 1986 (IRCA), codified at 8 U.S.C. § 1324a, created a two-track enforcement regime for employers who violate U.S. work-authorization requirements: civil monetary penalties for substantive hiring violations and Form I-9 paperwork failures, and criminal prosecution for pattern-or-practice violations. For cross-border employers and global-mobility teams, understanding this penalty framework is essential to calibrating compliance investment and managing exposure when establishing a U.S. presence or hiring individuals in the United States.

## Civil penalties: knowingly hiring or continuing to employ unauthorized workers

Section 1324a(e)(4) imposes civil fines on employers who knowingly hire an alien knowing the individual is unauthorized with respect to such employment, or who continue to employ an alien after obtaining knowledge that the individual is (or has become) unauthorized. The statute defines "knowing" to include not only actual knowledge but also constructive knowledge: courts and the Department of Homeland Security apply a willful-blindness standard under which an employer who deliberately ignores red flags or fails to investigate obvious warning signs is treated the same as one who has direct knowledge.

Civil monetary penalties for hiring or continuing to employ unauthorized workers are tiered by the number of prior offenses and are adjusted annually for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Effective January 2, 2025, the penalty ranges published by DHS in the Federal Register are:

• First offense: $2,789 to $6,973 per unauthorized worker
• Second offense: $6,973 to $13,946 per unauthorized worker
• Third or subsequent offense / pattern or practice: $13,946 to $27,894 per unauthorized worker

These amounts apply to penalties assessed after January 2, 2025, for violations occurring after November 2, 2015. The actual penalty assessed within each range is determined by DHS based on statutory factors including the size of the employer's business, the employer's good faith, the seriousness of the violation, whether the individual was an unauthorized alien, and the employer's history of previous violations.

## Civil penalties: Form I-9 paperwork violations

Section 1324a(e)(5) imposes civil fines for substantive violations of the Form I-9 verification requirements — failing to prepare or properly complete Form I-9, failing to retain the form for the required period, or failing to make the form available for government inspection — as well as for uncorrected technical or procedural failures. These are separate from the substantive hiring violations and can be assessed even when the employer did not knowingly hire an unauthorized worker.

The January 2, 2025 DHS inflation-adjusted penalty range for Form I-9 paperwork violations is $272 to $2,789 per form. Because the penalty is assessed per form, an employer with pervasive I-9 failures across a large workforce could face civil fines substantially exceeding the fines for a single substantive hiring violation, even if every employee was authorized to work.

The statute provides a limited safe harbor: if an employer corrects a paperwork violation within 10 business days of being notified by DHS, the employer may avoid penalties for that violation, provided the violation was technical or procedural in nature and not a substantive failure. This 10-day cure period does not apply to substantive violations such as failing to prepare any Form I-9 for an employee or knowingly hiring an unauthorized worker.

## Good-faith compliance defense for substantive hiring violations

Section 1324a(a)(3) provides that an employer who establishes it has complied in good faith with the Form I-9 verification requirements has an affirmative defense against employer sanctions for knowingly hiring an unauthorized individual, unless the government can prove the employer had actual knowledge of the employee's unauthorized status. This good-faith compliance defense turns on the employer's Form I-9 documentation practices: an employer who properly examined facially genuine documents and completed the I-9 process in accordance with the statute will not be held liable simply because an employee presented fraudulent documents that reasonably appeared genuine.

However, the defense does not protect employers who accept documents that do not reasonably appear genuine, who fail to complete the verification process at all, or who ignore obvious warning signs of unauthorized status. The good-faith defense is narrow and fact-intensive. It does not excuse constructive knowledge: if an employer receives a Social Security Administration no-match letter, observes that a document is clearly altered, or is otherwise on notice that an employee may be unauthorized, continuing to employ the individual without resolving the discrepancy will negate the good-faith defense.

## Criminal penalties: pattern or practice

Section 1324a(f)(1) makes it a federal crime for any person or entity to engage in a "pattern or practice" of violations of subsection (a)(1)(A) (knowingly hiring unauthorized aliens) or subsection (a)(2) (continuing to employ unauthorized aliens). Criminal pattern-or-practice violations are punishable by a fine of not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisonment for not more than six months for the entire pattern or practice, or both. These criminal penalties are in addition to — not in lieu of — civil fines.

The statute does not define "pattern or practice," and the threshold for criminal prosecution varies by prosecutorial discretion. The Department of Justice evaluates the number of violations, their timing, the presence of aggravating factors such as document fraud or prior warnings from immigration authorities, and the employer's intent. Employers who systematically fail to comply with I-9 requirements or who knowingly accept fraudulent documents across a large workforce are at elevated risk of criminal referral. The Attorney General may also bring a civil action in federal district court requesting an injunction, restraining order, or other equitable relief against an employer engaged in a pattern or practice of employment in violation of subsection (a)(1)(A) or (a)(2).

## Enforcement: ICE Homeland Security Investigations worksite enforcement

U.S. Immigration and Customs Enforcement Homeland Security Investigations (ICE HSI) is the principal federal enforcement agency for worksite violations. HSI conducts Form I-9 audits by serving a Notice of Inspection (NOI) on employers, requiring the production of all I-9 records within three business days. After reviewing the I-9s, HSI issues a Notice of Intent to Fine (NIF) for identified violations. Employers may contest the NIF by requesting a hearing before an administrative law judge within the Office of the Chief Administrative Hearing Officer (OCAHO) in the Department of Justice. If the employer does not timely request a hearing, the NIF becomes a final order.

ICE's worksite enforcement strategy has three prongs: compliance (I-9 audits and civil fines), enforcement (criminal arrest of employers and administrative arrest of unauthorized workers), and outreach (the IMAGE voluntary-compliance program, under which ICE provides education and training on proper hiring procedures, fraudulent document detection, and use of E-Verify). Employers found to have violated IRCA may also be barred from participating in federal contracts, grants, loans, and other government programs.

## Related criminal charges

Federal prosecutors may charge immigration violations alongside general federal criminal statutes. False statements made to federal investigators or in federal forms, including on Form I-9, may support charges under 18 U.S.C. § 1001 (false statements). Employers who accept documents they know to be false or who assist in procuring fraudulent documents may be charged with immigration document fraud under 18 U.S.C. § 1546. In cases involving poor working conditions, wage violations, or restrictions on workers' freedom to leave employment, prosecutors may bring human trafficking charges under 18 U.S.C. § 1590 or harboring charges under 8 U.S.C. § 1324(a)(1)(A)(iii). These overlay charges can result in sentences and financial penalties far exceeding the immigration-specific penalties in section 1324a.

## Cross-border employer considerations

For global-mobility practitioners, the employer-sanctions framework applies whenever the employment relationship involves work performed in the United States. An employer that sends an employee to the United States on an intra-company transfer or permits a remote worker to perform services while physically present in the United States should verify work authorization and complete Form I-9 for that individual, even if the employer is a foreign entity. The prohibition on knowingly hiring unauthorized workers and the Form I-9 completion obligation are federal law and preempt any state or local law imposing different or conflicting requirements under section 1324a(h)(2); state sanctuary policies do not limit ICE's authority to conduct worksite enforcement.

The penalty structure is cumulative and per-violation: an employer that hires multiple unauthorized workers in its first violation faces potential civil fines computed per worker (at the January 2025 rates, $2,789 to $6,973 each for first offenses), plus separate penalties for any I-9 paperwork failures, plus potential criminal exposure if the hiring pattern supports a pattern-or-practice charge. For a cross-border employer establishing its first U.S. operation, the financial and reputational risk of non-compliance — including potential criminal prosecution of responsible corporate officers — makes rigorous I-9 training, internal audits, and, where appropriate, enrollment in E-Verify a necessary part of U.S. market-entry planning.

Source: 8 U.S.C. § 1324a — Unlawful employment of aliens Source: 90 FR 2 (Jan. 2, 2025) — DHS Civil Monetary Penalty Adjustments for Inflation Source: USCIS Handbook for Employers M-274, Section 11.8 — Penalties for Prohibited Practices Source: ICE, Form I-9 Inspection Under Immigration and Nationality Act § 274A