Immigration law
7/24/06
What are the pros and cons of sponsoring an employee for a green card?
Many employees want permanent residency - ie, green card status - to obtain stability in their lives. As an employer, you want to retain valued talent after training and investment in these human resources. Depending on the prospective employee and the job market, some applicants may require an employer to sponsor them prior to accepting an offer.
Most employees on work visas are limited in the amount of time they may work in the U.S. For example, H-1B workers have 6 years, L-1 workers have either 5 (specialized knowledge) or 7 years (managers or executives). The time spent working with another employer is added in, so you do need to make sure when hiring how much time a person has left. While other work visas may not have actual time limits, most of them require the employee to retain a residence in the home country and an intent to return when their temporary employment is done.
Except for the E, J, and L visas, spouses cannot work unless they obtain separate employer sponsored work visas. There may be issues with children who "age-out" - ie, after 21 years the child may not have a derivative visa with the working parent. In these cases, the child may not be able to stay in the U.S. with the family unless he/she can obtain a separate student or work visa. So, your foreign national employees face many issues about the permanency of their stay in the U.S. Add to this buying a home, issues with state tuition, taxes and other issues.
The downside of green card sponsorship is, of course, cost - the costs for legal fees and other costs associated with the process, filing fees, and recruitment costs where the application process requires proof of lack of U.S. workers for the position. If approval by the Department of Labor is required, then you must follow a highly structured recruitment program according to DOL rules. It is important to understand that in these cases the attorney is representing the employer and the attorney should be selected by the employer. In DOL cases, audits can occur, and allowing an employee to select the attorney may cause a conflict of interest in an audit. Some cases may take from 2 to 5 years depending on quotas and categories.
Given that the process can be very lengthy, the employee may be more apt to remain with the job if they have a company-sponsored green card. However, under certain immigration rules, once the case reaches a certain stage, it becomes "portable" and the employee can leave and take it to a new employer. To recoup costs, some employers require reimbursement agreements if the employee leaves within a certain period of time either during or after the green card process.
-- CAROLYN FUCHS
When can someone who is still on a student visa be hired as a full time employee?
Some students who have co-op work authorization or practical training may be hired on a full time basis. However, the rules concerning student employment are complex and you should check with your immigration counsel or the school official who issued the work authorization to make sure you understand the limits. Once a student's work authorization is over, the employer generally needs to sponsor the student for a work visa. The most common work visa is the H-1B, but because of quota issues, these visas are not available for new applicants until October 1, 2007!
However, there are some still available for students who have a U.S. Master's degree or above. Then, there are H-1B visas available for natives of Chile or Singapore. Also, certain non-profit organizations can hire H-1B workers without regard to the quota. There are other technical exceptions. A student who had an H-1B visa in the last 6 years, for example, is not subject to the quota.
As you can see, the H-1B requires a lot of analysis. Even if the student cannot get an H-1B work visa, very often they are eligible for one year of practical training upon completion of studies. If this is the case, and the timing is right, a plan could be worked to get the H-1B once the numbers are available. There are other types of work visas, but less commonly used for students. Each case is different and requires individual analysis.
-- CAROLYN FUCHS
During the course of the Optional Practical Training (OPT), can an employee, a graduate with an F-1 visa status, be paid less than other individuals, having the same job titles and performing the same duties? Would it be discriminatory?
This is more of an employment law than immigration law question. There are no immigration rules requiring F-1 student visa holders who are graduates with OPT to be paid any particular amount. Generally, the OPT status is a trainee status and as such may well be paid less than fully trained workers. If the work is identical, and the performance is too, one would wonder why the foreign national is being paid less. There could be issues of national origin discrimination, under employment law and you should consult an expert in that field.
It should be noted that if the employee were holding H-1B work visa status, there could be a violation of the Department of Labor's immigration rules on the payment of wages. But this is not the case for other foreign nationals who do not hold H-1B visas.
-- CAROLYN FUCHS
I am hiring a foreign student who will be working her practicum year. What tax forms does she need to complete to be paid? Is there an average length of time that a sponsorship of a foreign national takes? Is there an average cost associated with the sponsorship?
This is a tax question which should be answered by a tax expert. Often the immigration rules and tax code provide different definitions of the term "resident alien." However, all new employees must complete the tax form W-4.
There may be extensive costs associated with obtaining an H-1B work permit. Legal fees vary among attorneys and the employer should make sure that the lawyer chosen to do the case has experience in this highly specialized area. For example, an H-1B visa, often costs more in filing fees than legal fees. First of all there is a $190 filing fee for the employee, a $200 filing fee for the family, if any, a $500 fraud fee and a $1500/$750 training fee (depending on whether there are 25 FTE's or more in the organization). But note that there may be other visa options.
As far as the processing times, 60 -90 days are the norm depending on the kind of work visa. The process can be speeded-up by paying the USCIS an additional $1000 filing fee for 15 day service.
-- CAROLYN FUCHS
What are the employer's immigration options when hiring a new employee other than IRS and Social Security?
An employee must complete the immigration Form I-9 to show employment eligibility. The first section must be completed by the employee on the first day of employment. By the third day, the employee must provide proof of employment eligibility and the employer must complete and sign section 2. Detailed instructions can be found on the USCIS website. The office of Business Liaison of the USCIS has also posted several informative bulletins on its website, including The I-9 Process in a Nutshell and I-9 Document Review. Both bulletins provide updated information about forms and correct or supplement the I-9 Form instructions and the Form M-274 Handbook, which were both issued in 1991.
-- CAROLYN FUCHS
We have several questions regarding H1-B visas:
Can a company pay a lower salary to an employee on an H-1B visa compared to the salary reported to the USCIS on the H-1B visa petition, or as mentioned in the green card petition?
The H-1B petition is submitted to USCIS, along with a Labor Condition Application (LCA) previously submitted to and certified by the Department of Labor. Both the H-1B visa petition and LCA are signed by the employer under penalty of perjury. The employer should not pay a wage lower than that promised on the LCA and H-1B visa petition. In order to pay a lower wage, the employer must file a new LCA and amended H-1B petition.
The wage promised in an employee's green card petition is not necessarily the same wage that is required pursuant to the employee's H-1B visa petition.
-- SUSAN COHEN
Is a company required to pay an employee during the period from employment termination until the USCIS cancels the employee's H-1B visa?
When an employer terminates an H-1B employee, it should (a) withdraw the underlying LCA (if other H-1B employees are not also covered by the same group LCA); and (b) notify USCIS the employee is no longer employed. As long as the employee is not actually employed by the employer, the H-1B visa regulations do not require the employer to continue to pay the employee.
-- SUSAN COHEN
Should an employee pay for the processing of an H-1B visa petition?
The Department of Labor (DOL) takes the position that it is the employer's responsibility to pay for the preparation and filing of an H-1B visa petition - it considers this to be a business expense of the employer; indeed the DOL's regulations state: "Where the employer depresses the employee's wages below the required wage by imposing on the employee any of the employer's business expenses, [including attorney's fees for preparation and filing of the H-1B visa petition], the Department will consider the amount to be an unauthorized deduction from wages, even if the matter is not shown in the employer's payroll records as a deduction."
-- SUSAN COHEN
What does "authorized to work for any employer" in different countries (e.g Egypt, Russia, China) mean on a job application, and how is that proven? Does it mean that the applicant has already been approved for a visa in that country in the past?
The phrase "authorized to work for any employer" in the United States would mean that the job applicant has blanket employment authorization, not tied to a particular employer. H-1B visa holders, for example, are authorized to work only for a particular employer or employers. In order to understand what this phrase means in other countries, you would have to consult attorneys in each of the relevant countries to determine whether the individual has the requisite temporary work permit/visa or permanent status in that country.
-- SUSAN COHEN
My company wants to rehire a person living in India who will be returning to the U.S. She will begin working part-time while living in India and then become a full-time employee when she returns to the U.S. Does she need to fill out state and federal tax forms if she is working outside the U.S.? Also, does she need to have an I-9 form completed before she returns to the U.S.?
An employer does not need to complete a new I-9 form for someone who is rehired if the employee is rehired within three years of the initial completion of the I-9 and if the employee remains eligible to work. In all other cases, complete a new I-9 on the employee's first day of work in the U.S. Your employee does not need to fill out U.S. tax forms if she is not a U.S. resident and doesn't otherwise conduct a U.S. trade or business.
-- SUSAN COHEN
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