Since the 1986 Immigration Reform and Control Act, employers are just as responsible as their potential hires for knowing and following the rules.
This starts with routine collection and verification of documents that demonstrate a legal right to work. It also calls for non-discrimination between citizen and non-citizen workers as long as both have the right to employment. However, if an employer wants to hire someone currently residing in another country, the rules become more complicated.
Immigration is a hot topic right now. From Republican presidential candidates’ different approaches to reform to recent news articles on the role of H-1B visas in outsourcing jobs, it’s more important than ever to understand the rules and implications of hiring non-U.S. workers. Read on for a guide to the most important information you need to know.
Collect Documentation From All New Hires
To prevent discrimination on the basis of citizenship, it’s standard practice for companies to ask for documentation of legal status from all new-hires. Employers must fill out Form I-9 to verify work eligibility. Companies must also:
- Make sure employees submit an acceptable document or combination of documents.
- Ensure documents are submitted within three days of employment.
- Use E-Verify to check the photos on employee documents against official copies. This reduces the likelihood of accidentally accepting counterfeit records.
- Keep track of expiration dates. You’ll need to update the employee’s file with current documentation once the previous one expires.
Form I-9 and the documentation process can seem deceptively simple, but don’t let routine lull you into a false sense of security. Mistakes are easy to make, and they can also be expensive. If you get audited by Immigration and Customs Enforcement and errors are found, fines begin at $110/mistake and multiply for repeated mistakes or serious offenses. Therefore, it’s wise to take the documentation process seriously. Assign this responsibility to a specific employee and make sure to hold them accountable for accuracy.
Hire Nonresident Workers Only as a Last Resort
Immigration and work laws are intended to protect American workers and their wages, so hiring a nonresident worker is meant to be a last resort under the law. For example, H-1B visas are given only to highly-educated workers in specialty fields, and they are temporary. There is also a cap of only 65,000 visas available each year.
Other visas for foreign workers include:
- H-2A and H-2B allow seasonal laborers to work legally.
- O-1 visas grant legal working status to professionals in fields such as science, business, education and the arts.
- Workers with specialized knowledge and other professionals may qualify for the E-1, E-2, L-1B, H-1B, E-3 or TN visa.
- International business executives can receive L-1A visas.
- R-1 visas are specifically for religious employees.
- Athletes, entertainers and other celebrities also have their own category of visa: P-1, P-2, P-3 or Q-1.
While the purpose of these visas may only be to fill a spot no legal American worker can, there are still plenty of good reasons to hire nonresident workers. You shouldn’t be discouraged from doing so if it’s the best choice for your business.
However, visa applications can be complicated, and most businesses don’t have experienced staff to handle the visa application process. Consulting an attorney with experience in business and immigration law can make the process easier for your company.
To Sponsor or Not to Sponsor
In the end, the decision to hire an employee from outside the US must be made on a case-by-case basis. It may be difficult, but there are many reasons more and more large American companies are choosing to sponsor foreign workers to fill positions in the US. For one thing, in our globalized world, most big companies have offices in more than one country. It becomes natural, then, for employees from different countries to transfer from one office to another.
In addition, to stay competitive, companies must cast the widest net possible to recruit highly-skilled employees who also bring bi- or multi-lingual abilities and diverse backgrounds to their jobs. Immigration and hiring of nonresident workers may be a controversial topic, but that’s only because demand is increasing. With an economy growing more competitive and international, it’s not likely this trend will diminish.
