In today’s economy, services are either outsourced or individuals are brought in to exchange ideas and or services for money. In order to acquire the services of these individuals, certain requirements need to be met, particularly, in terms of immigration law.
Immigration Law summarizes the set of rules allocated by the Federal Government relating to who is able to enter into the US and for how long. It governs the process of naturalization for individuals that wish to become citizens, while enforcing detention and removal for individuals that stay beyond their welcome or without permission.
Immigration to the US for business has not changed much in recent years, however, there are a few minor differences, especially for foreign employees. Businesses can now acquire visas for talent individuals, providing them with the ability to work in the States, either temporarily or permanently. It is the responsibility of the business to express the terms of the individuals stay.
Temporary Visas
If you are in need of temporary services, there are over 20 different non-immigrant visas available. Depending on the level of work required and length of stay, your foreign employee will be attributed with a different visa. In some cases, you will need to sponsor these individuals with the intent to work only for that employer and return home after the job has been completed.
All non-immigrants are inspected by U.S. Citizenship and Immigration Service to reaffirm the qualification for entrance, determine the right classification needed and authorize the length of stay. For some sponsored non-immigrants require their petition approved by USCIS before their visa can be applied for.
Foreign employees are required to forgo two screenings in order to gain entry into the United States. A United States Consular Officer will ensure the employee’s purpose for work matches at least one the categories pertaining to entrance into the country, while making sure all other requirements are met before a visa can be issued.
Permanent Visas (Green Cards)
For more permanent jobs, employees can apply for a green card. A green cards allots for the indefinite right to live and work in the United States as long as an offense that would be deportable is not committed. Some businesses can self-petition on the employee’s behalf particularly if they meet the statutory criteria for having an “extraordinary ability” in the field or their entry would be in “national interest”.
The process of acquiring a temporary or permanent visa is relatively simple, however, here are a few issues to consider.
Termination of Foreign Employee
If for any reason the contract between your business and the foreign employee needs to be terminated, a number of precautions need to be taken into account. The process is not as simple as it would be for a U.S. citizen.
The Department of Labor (DOL) and the U.S Citizenship and Immigration Services (USCIS) would need to be notified of the impending termination. Additionally, as you brought them here, you will need to offer the employee the cost of transportation to return home. If not, you could be responsible paying wages to said employee.
Salary/Hourly Reduction
In some cases, the company might need to make some cut-backs and reduce the salaries of a number of employees. While such a task might be easier with US Citizens, the idea becomes a lot more complicated considering foreign employees. As an employer, you are obligated to pay the highest or average rate for the services of any individual in the field regardless of geographical location, meaning, the foreign employee’s wages cannot be lowered.
Similarly, a reduction in hours will violate immigration laws. Under the law of immigration, you could find yourself paying the rate for full-time work even if the employee has been reduced to part-time work.
Government Enforcement for the Declaration of Foreign Employee Status
As specified earlier, businesses have always been obligated to outline their employees’ identity and employment status. Previously, this obligation was resolved through the I-9 form. While the I-9 has been surpassed, the obligation still remains.
Previously, businesses were penalized via monetary fines, usually equally the cost of business. Nowadays, the U.S. Immigration and Customs Enforcement (ICE) now partake in publicized raids to any business that requests the services of foreign individuals without government consent. These raids can be detrimental to businesses as they disrupt operation and enforce negative publicity affecting future work.
E-Verify
Lastly, an employer of future foreign employees should be concerned with would be the issues surrounding E-Verify. E-Verify or Electronic Verification is an a new government program that electronically verifies the status of the foreign employee and has surpassed the use of the I-9 form.
As it stands, the program is entirely voluntary for most businesses, however the government is looking to make it mandatory.
Unfortunately, as as sacrifice for convenience, E-Verify gives the right to the Immigration and Customs Enforcement to inspect employee records without notice to the company in question. Furthermore, ICE can use government databases to ensure employers have complied with the immigration laws pertaining to foreign employees. Additionally, businesses can only account for new hires using E-Verify. Previous hires are not immune from removal via Government request or enforcement.
The ease of today’s economy that allows for the transfer of services making work so much easier. Nevertheless, the government has become more strict over the years, permitting and withholding entrance to foreign employers unless all requirements are met.
As a business, you are entirely responsible for foreign employees. Notification to the particular inter-governmental departments about the arrival and work of these employees is imperative. As a result more businesses are requesting the aid of immigration counsels, attorneys, and other specialists in business immigration law as it pertain to the I-9 forms, E-Verify and the development of immigration policies within their business that comply with the new immigration laws. Failure to comply can result in the disintegration of your business. A wide number of attorneys are educated in business immigration law and are able to deliver an appropriate plan of action. Contact attorneys with a number of years in the field of immigration law for the best results.
