YOUR GUIDE TO BUSINESS AND CORPORATE IMMIGRATION
In an age of global commerce and innovation, businesses of all sizes are compelled to bring in experts from all over the world. Simply, a company cannot afford to overlook competent, prospective employees, based on their country of origin. While foreign national workers can contribute extensively to your business, they also create a number of legal issues. As a result, many companies that hire foreign immigrants unintentionally violate the law without even realizing it. Barshay Sanders is committed to helping you avoid any legal problems with the U.S. Citizenship and Immigration Service (USCIS). Our team is trained to deal with all business immigration issues, including:
- I-9 Compliance Issues
- Working Hours and Forced Absences
- Legal Status Compliance Issues
- Immigration Issues related to Reductions in Force or Layoffs
Business immigration issues typically occur when employers attempt to reduce foreign national employees’ wages and/or hours. This is because most Visa categories require employers to pay foreign nationals at least the prevailing wage set for the job category based on figures established by the U.S. Department of Labor. Although most employers have no trouble paying the correct wages when profits are high and the business is succeeding, problems typically arise during periods of economic decline where the payment of that wage becomes difficult or impossible. You should be aware that any reduction in pay to foreign nationals, even if it is a part of general company-wide wage reduction, may put you in violation of applicable immigration laws. Another area of a potential immigration violation related to foreign workers includes a reduction of their hours, transferring the employee to an off-site workplace, and both voluntary and involuntary leaves of absence. All of these circumstances contain pitfalls to the unwary company and may subject you to legal repercussions.
One other important area is related to the termination of a foreign national employee. In an effort to curtail migrant workers from being stranded in the U.S., some visa categories require employers to notify USCIS and the Department of Labor after a foreign national has been terminated. Critically, under some circumstances, employers are responsible for providing reasonable costs for return transportation to the former employer since USCIS has adopted a policy that some visa petitions are valid until revoked, which may leave the employer liable for wages to the foreign national even after termination.
Other legal issues may arise if an employer terminates a U.S. worker while they have a pending application for a foreign national employee in a similar position in the company. In order to address this concern, both USCIS as well as the Department of Labor require internal recruitment for positions being offered to foreign nationals.
Finally, state and federal immigration laws also impose regulations on employers to verify a prospective employee’s eligibility for lawful employment in the United States. There are potentially significant consequences for employers who fail to comply with I-9 regulations which include: fines, worksite raids, damage to the company’s reputation, as well as potential criminal charges. These concerns are quite significant but must be balanced by concerns with attempting to verify the employment eligibility of a prospective employee by asking detailed questions about race, citizenship, national origin, or other topics that could create a risk for the employer of a discrimination lawsuit. The best practice to avoid these dueling pitfalls is to design a single verification policy that everyone in your company understands and to apply it equally across all of your employees. Attorneys at Barshay Sanders will work with you to design a policy to avoid these potential pitfalls. Feel free to contact us online.