11/14/2005
Working in a foreign country for a US company
If a US company has an employee based and working in a foreign country, must they still complete paperwork that a US employee would -ie, I-9 form? What about handbook, internal policies, etc.?
A US company that employs an employee in a foreign country is not required to complete an I-9 for that person, as an I-9 is required only for employment in the US While I am not an employment lawyer and don't have a definitive answer to the rest of your question, I suspect the employment laws of the country in which the employee is working will govern his or her employment. You should consult with local employment law counsel of the country in question.
-- SUSAN COHEN
Back to top
Work authorization status, H-1Bs, and green cards
I have received conflicting opinions on the following three issues:
- Can we lawfully ask this question in our job applications: "Will you need employer 'sponsorship' to maintain work authorization for this position?" We would prefer to ask more specifically "What is your work authorization status?", because we would like to evaluate the potential immigration costs for each individual vis-a-vis their comparative skill set as soon as possible in the process. Depending on the candidate's skills, we might or might not be willing to incur the expense.
- Are we legally required to pay full legal and filing fees for H-1B's?
- If we pay for someone's permanent resident (ie, green card) status, can we ask them to pay it back if they leave the US within a specified time period?
In answer to your first question, there are only two pre-hire questions that have been authorized by the Office of Special Counsel: (1) Are you legally authorized to work in the US? (yes or no); and (2) Will you now or in the future require sponsorship for employment visa status (e.g. H-1B status)? (yes or no). The Office of Special Counsel recommends against asking the specific question you have posed ("What is your work authorization status?") because a rejected applicant could rely on such an inquiry to later allege that you considered this information in making your hiring decision, and discriminated against the applicant on the basis of his citizenship status. It is important to note that the only classes of persons who are protected from citizenship status discrimination are: US citizens; permanent resident aliens; temporary resident aliens; refugees; and asylees. You are not required to hire someone with time-limited employment authorization such as an F-1 student authorized for Optional Practical Training (OPT). However, if you choose not to hire people with time-limited employment authorization because you don't want to sponsor them later for temporary work visa status, make absolutely sure to implement such a limited hiring policy in a consistent fashion. Failure to implement such a policy consistently could lead to claims of national origin discrimination.
Regarding your second question, the Department of Labor (DOL) requires the employer to pay the legal fees associated with the preparation of the H-1B visa petition and, if the employee pays these legal fees, the DOL considers such a payment to be an unauthorized deduction from the employee's wages. The H-1B filing fee is comprised of three distinct components: (1) a $190 filing fee; (2) a $750/$1,500 H-1B training fee (with the amount determined by the number of employees employed by the Petitioner); and (3) a $500 anti-fraud fee (which only applies to first-time H-1B petitions and change of employer petitions). It is the employer's responsibility to pay the H-1B filing fees. Should "premium processing" be requested, the additional $1,000 premium processing fee could be paid by the employee or by a third-party.
As to question #3, an employer is under no obligation to pay to sponsor an employee for a green card. Accordingly, you can choose to pay for the entire process; some portion of the costs/fees involved; or none. If you choose to pay, you may certainly request the employee to pay back all or some portion of the fees/costs if the employee leaves the company within a specified time period. Such agreements are quite common. Also, even employers that accept financial responsibility for the green card process increasingly choose not to pay for the green card applications of the employee's immediate family members.
-- SUSAN COHEN
Back to top
Compensating a non-resident alien intern
I have a prospective intern who is to be compensated for her time. She is a Hong Kong citizen who has completed her first full year at Boston University. I have a valid Employment Authorization Card. It has an "A" number. Am I required to request a U.S. social security number to complete her necessary employment paperwork to enable me to compensate her?
This is really an employment law question more than an immigration law issue. For payroll and tax withholding purposes, employers are required to provide each employee's name and Social Security Number (SSN) on the W-2 form. This applies to resident and non-resident alien employees. In the event an employee does not have an SSN, the employee must complete an "Application for Social Security Card." In the interim, the employer should enter "Applied for" on the W-2 Form. The form should be amended after the employee receives and presents the SSN card to the employer. Note that there may be special social security treatments for certain students, and tax advice may also be required.
-- CAROLYN FUCHS
Back to top
Hiring foreign nationals
We refer candidates for 3 mo. to 2 yr. paid internships throughout the U.S. in the government, private, and non-profit sectors. The interns, while physically located at and taking day-to-day project instructions from the sponsoring agency, company, or organization where they are interning, are on our payroll. We are the employer.
What must we do to comply with current immigration law if we wish to refer (hire) foreign nationals occasionally for these internships? From past experience, "sponsoring" a foreign worker is an onerous process. We would rather stop short of actually sponsoring these folks. I understand the process for hiring Mexican and Canadian nationals is relatively less complicated, but in addition to these, we would like to make the internships available to nationals of the many countries from whom we get responses to our postings.
This question is difficult to answer without knowing what type of work authorization or work visa the person has. It could be answered briefly. For example, if the intern was on an F-1 Student visa using Optional Practical Training or a school approved co-op program, so long as it conformed with providing the student with curriculum-related training, it would not be a problem. However, it might require extensive paperwork, Department of Labor approval, and filing new or amended petitions with the Department of Homeland Security if the person were on an H-1B Temporary Worker visa. Or, if the person were an L-1B, Intracompany Transferee, it would be barred by law.
-- CAROLYN FUCHS
Back to top
Do you have a question for our panel of NEHRA HR experts? Submit it here.
