IMMIGRATION LAW
08/13/07
Candidate for hire with a green card
We are a small company with a candidate we would like to hire. However, the individual has informed me that he has a green card. Other than filling out the I-9 form, is there anything else we need to do to hire this individual? Along with the green card, I assume that he must have a social security number. This is the first time we have come across this and want to ensure we are following the required procedures.
If the candidate presents a valid green card in connection with the I-9 process, then that is a List A document for I-9 purposes. It is the new employee's right to submit any documents that meet the I-9 requirements, so even if the person has a green card, he may present other documents, such as a driver's license and social security card. If this candidate has a social security number, he will include this number on his I-9 form as well.
It may be the case in your example that the candidate volunteered the information about his green card. This is fine. It is important to remember that when you interview candidates you ask only legally permissible questions. For example, it is not proper to ask: "Do you have a green card?" or "Are you an American citizen?" You may ask if the candidate is legally authorized to work in the U.S. or if they now or will in the future require employment visa sponsorship.
-- SUSAN COHEN
Paying a foreign employee based abroad
Can a foreign employee for a U.S. company whose work is being done abroad be paid directly by that company? Do wages need to be paid to a foreign bank or can we set up a U.S. bank account for the employee? Or, does the employee need to be paid by foreign sources?
There are no specific prohibitions that I am aware of on the source of the payment to the foreign employee. However a U.S. company may find that it is not desirable to pay the individual from the U.S. as by doing so the U.S. entity may find that under foreign law the company may be considered to have a "presence" in that country, which could potentially subject the U.S. company to foreign laws, jurisdiction, taxes, etc. Accordingly, if possible it would be best to set up an overseas entity and have that entity pay the overseas employee.
-- SUSAN COHEN
Applying for a green card during the OPT period
Is it possible to apply for a green card while the employee is still in the Optional Practical Training period? If yes, what are the pros and cons one should be aware of?
There is no restriction on doing this but it is important to remember that the F-1 visa, which allows for Optional Practical Training, requires the F-1 student to have "nonimmigrant" intent and, when the visa is issued, the student is required to prove that he or she is planning to return to his/her home country upon completion of the program. Beginning the green card sponsorship process for someone in F-1 status could restrict that person's travel opportunities, and if an emergency arises and the person needs to leave the country it is highly unlikely that they would be able to obtain a new F-1 visa stamp in their passport and be able to return to the U.S. If the person can change to H-1B visa status that would be desirable as the H-1B visa allows for "dual intent."
-- SUSAN COHEN
Paying visa fees
I know 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. But if an employee wanted to pay for those expenses (to secure her continuation with the firm) is it legal for the employer to accept that volunteer contribution?
The Department of Labor takes the position, embodied in its regulations, that it is the employer's responsibility to pay the legal fees associated with the preparation and filing of the H-1B visa petition. The employer is also responsible for paying the USCIS (United States Citizenship and Immigration Services) filing fees. The employee may pay for Premium Processing, if applicable, and may pay that portion of the legal fees that relate to the request for an extension of status or change of status. An immigration attorney may allocate a portion of the legal fees for this aspect of the filing, and the employee may pay for that limited aspect of the work. It is only legal for you to accept a volunteer contribution in that limited amount.
-- SUSAN COHEN
Working with a G-4 visa
I started a corporation with a foreign national who works in the U.S. for the World Bank and is currently on a G-4 visa. Because that will remain his primary job, he is unable to change his visa type, and a G-4 prohibits him from working for anyone but the World Bank. How can we financially compensate him for the work he contributes?
Based on his immigration status, G-4, he cannot lawfully work for another entity in the U.S. To do so would violate his immigration status and potentially subject him to deportation. While he can be an owner, he cannot provide services and only invest in the business. But if he made a business trip to France for the company, for example, he could be compensated for services performed outside the U.S. But he could not be compensated for any services rendered in the U.S.
--CAROLYN FUCHS
Visa types for foreigners working in the U.S.
We are hiring someone who is an Indian passport holder. What type of documents are needed for a work visa for a person coming from India?
Work visas are not based on nationality but instead on type. For example, professional workers with degrees in their field often get H-1B work visas. But the U.S. has an annual quota and it is exhausted until October, 2008. There are some entities that are exempt from the quota - for example, colleges and universities, or research institutions affiliated with them. But these exceptions are very narrow and don't apply to businesses.
There are work visas for Intracompany Transferees called L-1's. These are for persons who were employed by a related company outside the U.S. for at least one year over the last three and who are being transferred to the U.S. to perform specialized knowledge, managerial or executive services for a related company. A related company is one where there is common ownership, for example, a U.S. subsidiary of a German company.
There are many work visas, but each has special rules and requirements it is not feasible to list here. You can find more information on the USCIS website. There is a brief overview of all work visas in this USCIS PDF.
In short, work visas are generally complicated and you may wish to consult an experienced immigration attorney.
--CAROLYN FUCHS
Is it legal for a U.S-based company to hire a salaried foreign worker who is based in a foreign country? The worker would be a resident in the foreign country and would make regular short trips to the U.S., eg, for a few weeks every six months or so. Would the worker need to maintain a non-immigrant visa status for the periods of time that he/she is not present in the U.S.?
There is no legal requirement for a U.S. company to get a non-immigrant work visa for a person it employs abroad unless the employee will perform services while in the U.S. So, in some cases, it may be necessary to get a work permit for the time the employee comes to the U.S., depending on what the employee does while in the U.S. You may check out the list in the question above, which lists the types of work permits available. Generally, if the person is just attending meetings, getting instructions, or presenting information about their employment outside the U.S., a work visa is not required. However, to visit the U.S., some type of business visitor visa or exemption would be required just for the business trip.
Generally, a citizen of a foreign country who wishes to make a business trip to the U.S. must first obtain a Business Visitor (B-1) visa. The employee would apply at the U.S. Consulate in the country where the employee resides. The employee would have to show that the purpose of the trip was in connection with his/her foreign employment and did not involve "working" in the U.S.
Some employees may not need to apply for a B-1 visa and may travel under the Visa Waiver Program as "WB's" (Waiver of Business Visitor Visa) for a period not to exceed 90 days. The Visa Waiver Program currently covers 27 countries whose citizens may travel to the U.S. as WB Business Visitors. Essentially, citizens of these countries are exempt from getting a visa. This depends on whether their country of origin participates in the Visa Waiver program. For a list of the 27 countries and more detailed information from the State Department about the Visa Waiver Program, click here. These employees just use their passports and must have a round trip ticket. If they meet the requirements outlined by the State Department, they can get a WB permit when they enter the U.S. at the airport or land border and may stay for 90 days, no extensions permitted. Otherwise, the employee would have to get a B-1 visa at a U.S. Consulate prior to coming to the U.S.
--CAROLYN FUCHS
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