You've likely seen the recent headlines..."More than 250 Illegal workers employed by Wal-Mart...one law that Wal-Mart forgot to warp in its favor was the one that prevents U.S.companies from employing or taking advantage of the services of individuals who are not authorized to work in the United States." So now I ask you, are your employees, consultants, and sub-contractors legal employees? I would wager that in 9 out of 10 cases you likely have no idea.
Until just recently, I had spent more than 4 years working in the US as a foreign national working as a "Geographer".Of course I always had legal employment status, starting out with a TN visa, and then jumping to H1B status.My employer was also protected and was in no way breaking any employment or immigration laws, however, you may be surprised to learn that this is frequently not the case.
Here are some commonly overlooked facts to keep mind (particularly if your company employs alien workers)
- The employer petitions INS for a work visa, NOT the employee
- A work visa (i.e.TN, H1B) is tied to a specific job with a specific employer. Therefore, a person holding such a visa is not permitted to sub-contract, offer consulting services, or work for anyone other than the petitioner of his/her visa.
- A person's work visa is technically not expired simply because the employer has returned to his home country.The onus is on the petitioning employer to contact INS and instruct them that the alien's term of employment has ended.
- When the term of employment ends so too does the visa.
Some things to watch out for which could get your company in trouble:
It is quite common for foreign nationals to search for work once they have been laid off.This may seem like no big deal, however, it's not legal. Here's an example; Joe is working in the US as a geographer with H1B visa status.Then, he receives layoff notice.Joe starts shopping his resume around the country in search of employment as a geographer; he may even boast to potential employers that he has a valid work visa.The reality, Joe actually has 30 days [roughly] to leave the country and return to his native country or, he may switch status to a visitor's Visa.A new company may employ him; however, they will need to move very fast in order to petition Joe for a new work visa.Realistically, the only visa that can be secured on such short notice is a TN.Without doing so Joe's new employer would have hired an illegal foreign worker.Something to keep in mind, Joe may have 30 days to clean up his personal matters and leave the country, however, he's not "officially" terminated [along with his visa status] until his petitioning employer reports to INS that they have laid him off.
Other things to watch out for:
If you employ a foreign national, is her Visa current or has it lapsed. This is very easy to overlook, particularly with the short-term TN visa, frequently used to employ Canadians in the US.To check, look at the employee's passport and check the stamp, also, look at the I-94 card [white paper stapled inside the passport] - if they don't have an I-94 you should be very concerned!
As an employer, have you inspected your foreign employee's papers? Additionally, do you have copies of all communications with INS? Final approval for a work visa may be sent directly to the foreign national, however, the employer should always request to see all records and notices - make copies!
Do you hire consultants or sub-contractors? Have you ever asked about their employment status? I have heard of people who were "moonlighting" while on TN status in the US and working a second job on the side - this is illegal.The simplest way to do this is request to view a Social security card.Foreign nationals with approval to work will possess such a card.
Do you have access to an immigration attorney? Your lawyer may offer up advice, however, unless they are trained in labor law, and in particular, immigration labor, they likely can't offer much advice.
As part of employees "perks" an employer may offer to hire a foreign national's spouse for part-time work.A spouse is not entitled to work unless he/she has a work visa.
What about paying taxes? Foreign nationals must possess a social security number.Without one you cannot possibly deduct taxes and subsequently remit taxes to the government.Of note; a foreign national with a Tax ID (TID) rather than a social security number (SSN) is likely not permitted to work.
Finally, as an employer you should be involved in the entire application process.Many employers simply sign on the dotted line and have no active involvement in the process, instead letting the petitioning employee handle all the paperwork.Be involved and make sure you know what you are signing!
Grasmick - www.grasmick.com - this website offers an immigration handbook for sale which is worth every penny!
NAFTA Chapter 16 - http://www.dfait-maeci.gc.ca/nafta-alena/chap16-en.asp
US Immigration forms - http://www.immigration.gov/graphics/formsfee/forms/index.htm