Hiring foreign nationals is becoming more burdensome and risky for employers in many industries as more security restrictions are imposed to identify potential terrorists and criminals. Professional employees of some of New England's largest companies have been stuck overseas for months waiting for visas, or were sent back home immediately after arriving at Logan Airport, or are simply just waiting while mysterious "background checks" delay green card applications. In many cases, these problems are affecting executives or critical workers, disrupting business plans and otherwise causing staffing problems.
The need for qualified workers
Companies of all sizes continue to rely on non-US citizens to fill positions for which they are unable to find qualified and available US workers. Last year, for example, there were almost 80,000 new H-1B work visas sponsored by employers. These visas are for professional workers, including computer programmers, medical researchers, and college professors. There are also visa categories for international transferees, foreign investors in new businesses, religious workers, and many others.
In most cases, employers are sponsoring these visas because they cannot find qualified domestic workers for specific openings. However, new security restrictions are making it more difficult to employ these skilled and sought-after workers. All foreign nationals are subject to long and burdensome security checks at every stage of the immigration process, resulting in unexpected delays, uncertainty, and frustrated employees and employers. Although these restrictions may be necessary for national security, they are adding to the difficulties faced by employers who hire non-citizen workers.
The focus on national security
For foreign workers and their employers, the immigration-related anti-terrorism initiatives implemented in the aftermath of September 11, 2001, are a minefield of constantly shifting regulations and requirements, with potentially drastic consequences for foreign nationals failing to comply. These policies and procedures are in an ongoing state of transition for a variety of reasons, not least due to the complete reorganization of US immigration services and enforcement functions. On March 1, 2003, the Immigration and Naturalization Service (INS) was abolished and its functions moved to three different bureaus in the new Department of Homeland Security. Although one bureau is devoted to providing immigration services, the new US Citizenship and Immigration Service, there is no doubt that security concerns are dominating immigration policies, as discussed here.
Tighter new visa application procedures
The vast majority of foreign workers will have to obtain visa stamps in their passports at some point in their employment, either before entering the United States to start a new job, or to return to the United States after vacations or business trips to another country. For many years, applying for a visa stamp at a US embassy or consulate took only a few hours or, at most, a few days. Now, however, this process can take months.
At the end of 2003, the State Department, in most cases, stopped waiving personal interview requirements for individuals seeking a visa. Now, almost all applicants must make an appointment for a personal interview. In some places, including London, Frankfurt, and Mexico City, the appointment calendar is booked for weeks. There is generally no system for expediting appointments.
In addition, the State Department is running security checks on many people, which can also significantly delay an application. These security checks are handled in Washington, DC and can require multiple national security and law enforcement agencies to approve an application before the visa is issued.
The State Department has provided only limited information on the circumstances that will prompt the checks, but there are some obvious characteristics that make a security check more likely. Special scrutiny is imposed on men between 16 and 45 from predominantly Arab and Muslim countries. Foreign nationals who work in high technology, engineering, or the sciences should be prepared to be questioned closely about the details of their jobs, especially when they work with products or services that have both commercial and military applications (known as "dual use" technologies). If an export control license is required for the position, the employee must ensure that job activities are within the terms of the license and that the employer can document compliance with the license.
Although in some cases the likelihood of a security clearance can be predicted, based on the person's nationality, background, or expertise, clearances are sometimes required for applicants without any obvious "suspicious" attributes. If someone has a name similar to a name on a government "watch list," for example, it has in certain circumstances taken weeks to resolve the difference in identity.
Absent without visas
Because of the potential for being stuck outside the country for weeks waiting for a visa to return, some employees are simply unable, or unwilling, to leave the United States either for vacations or, what is even more disruptive for the employer, for business travel. Companies now should consider these issues in some hiring and staffing decisions.
One problem faced by employers is how to treat employees who are unable to return to work for long periods after vacations or business trips that were initially expected to be short. Some employers have patiently (or impatiently) waited for visas to be issued, while others have felt compelled to terminate employees who were unable to return to work at the end of an approved vacation. Such action should be discussed with in-house or outside employment counsel, prior to termination of the employee. We have advised employers to talk with employees about these issues before they make international trips during which they will need to apply for a visa to return.
Registration and tracking systems
Starting on January 1, 2004, all temporary visa holders, with some exceptions, are being photographed and fingerprinted as they arrive in the United States as a part of the new check-in / check-out system, formally called the United States Visitor and Immigration Status Indication Technology (US-VISIT) system. Immigration officers will also collect more personal information than had previously been the case, and will check this information against various national security and law enforcement databases. Although the departure system is only in the pilot stage, it will eventually be in force nationally. The system is also intended to track changes and extensions to people's immigration status. Although this system does not impose additional requirements on foreign employees, it does involve additional delays and some foreign employees may be uncomfortable with the nature and extent of personal information that they may be asked to reveal.
In addition to identifying potential terrorists, these systems also are identifying foreign nationals with criminal records who previously would have escaped notice. Until recently, only records of major criminal convictions were in the immigration databases. However, as immigration and law enforcement databases are increasingly linked, foreign nationals with convictions for even minor offenses may be questioned about these convictions and, in some cases, found inadmissible to the United States. Therefore, foreign national employees with criminal records may present potential problems even if those records are not a bar to employment.
As of September 2002, the government began actively registering and tracking certain foreign nationals. Also, in an unprecedented step in US immigration policy, certain foreign nationals were fingerprinted and photographed when arriving in the United States, required to report regularly in person for interviews with immigration officers, and required to "check out" when leaving the country. These requirements were imposed primarily on citizens of certain Arab and Muslim countries, but a citizen of any country could be required to participate if ongoing monitoring is deemed necessary for national security reasons. These requirements were relaxed somewhat in December 2003, reducing the regular reporting requirements for most applicants, but it remains true that almost any foreign national without a green card can be made subject to this requirement, and we emphasize that departure control requirements remain in place. Failure to comply with the departure control rules may make the person ineligible to return to the United States, and missing a reporting deadline may subject a person to deportation, criminal penalties, and fines.
This registration system does not directly involve employers, and in many cases employers are not even aware that an employee has been made subject to registration. However, for companies that regularly sponsor employees for work permits, green cards, and other immigration benefits, employees may expect that the company is also monitoring their compliance with these registration requirements. Because new reporting deadlines can be imposed on each entry to the United States, employers have no way of monitoring and tracking these deadlines. Companies also have no way of ensuring that employees properly report themselves on leaving the country. Therefore, it is very important that employees are aware that these requirements are imposed independent of the company's sponsorship and that employees themselves must ensure that they comply.
Delays in applications in the United States
Behind the scenes, as well, security checks are causing delays for even routine immigration applications being processed in the United States. The government is now running a basic security check before making any decision on any application, and, in some cases, more extensive checks may be run. Although the delays caused by these checks are getting shorter as the government becomes more efficient at incorporating this new process into their procedures, there remains the possibility of long unexpected delays because of possible name matches or other problems.
New travel document requirements
Before traveling internationally, foreign nationals should verify that passports and visas are valid for reentry to the United States. A foreign passport must be valid for at least six months beyond the period of admission to the United States, with some limited exceptions. Canadian citizens generally are not required to possess a valid passport to enter the United States unless they are entering from outside the Western Hemisphere, although they do need to present proof of Canadian citizenship.
Conclusion
Foreign employees can bring invaluable expertise and knowledge to companies, but employers should be aware of the impact of new security measures on their ability to incorporate foreign employees into their operations. Although the basic rules governing who can work in the United States have not been changed in recent years, growing administrative burdens because of fears of terrorism are making it more critical than ever to plan carefully when hiring foreign nationals. Step one for employers is to be aware of the changed procedures. Step two is not only to follow the new procedures but to allow the additional time required to complete all the necessary steps in the process.
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Paull Hejinian is the Managing Partner of the Boston office of Fragomen, Del Rey, Bernsen & Loewy, PC and is also a NEHRA member. Paull can be reached at (617) 574-0412 or phejinian@fragomen.com.
