January 15, 2009

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Bound to Succeed

Kelly King Anderson was pregnant with her third child, and exhausted. She had...Read More

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Hiring Abroad

Stepping Through the Immigration Employment Minefields

Gretta Spendlove

January 15, 2009

Two years ago, federal raids for illegal foreign workers at Swift & Company’s meatpacking plant in Utah, and five other states, nabbed approximately 10 percent of the company’s workforce. In October 2008, immigration agents raided Universal Industrial Sales’ metal fabrication business in Lindon, Utah. The agents detained 50 undocumented workers, charged Universal with harboring illegal aliens and arrested its human resources manager. Illegal immigrants fill many lower-paid jobs in construction, agriculture, hospitality, meat processing and food services. Most employers in those areas know they must strictly follow federal laws, or else risk raids, fines and arrests. Universities, high tech companies and other employers of highly educated workers also struggle with federal restrictions on foreign employees, because few H-1B visas are awarded when compared with the number of applicants.The number of highly educated foreign workers petitioning for H-1B work visas is more than double the number of visas available. And, many of those visas go to Asian outsourcing companies, such as Wipro Technologies and Infosys, which bring in workers for short-term jobs as part of technology outsourcing contracts. Critics also claim that American companies use the visas to import foreign workers without first trying to fill positions with American workers. H-1B visa proponents, such as Bill Gates, claim that additional H-1B visas are needed to keep U.S. high tech companies competitive. Immigrant workers are controversial whether they are highly paid or not. Federal legislation to overhaul both the H-1B visa program and the illegal worker issue has been proposed, but is stalled in Congress as the culture wars rage. Until clearer, more equitable laws are enacted, employers must work through frequently-changing technicalities to both use foreign workers and comply with the law. Following the Rules U.S. employers must fill out a Form I-9 at the time of hiring each employee, which are available at www.usscis.gov. The form, which is designed to establish both identity and employment eligibility, has two parts; one for the employee and one for the employer. In Part One of Form I-9, the employee gives his or her name, address, date of birth and social security number. The employee must also attest, under oath, that he or she is either a U.S. citizen, a lawful permanent resident or an alien authorized to work in the U.S. In Part Two, the employer certifies that it has examined documents from a specified list verifying both the employee’s identity and eligibility to work. There is no filing requirement for the Form I-9, but employers must retain the completed forms for three years after the date of hire or one year after the date employment ends, whichever is later. In addition to preparing Form I-9s, the Immigration Reform and Control Act (IRCA), a controversial law enacted in 1986, requires employers to enact other policies such as terminating workers if the employer later learns that the employee is undocumented. Prohibition of Discrimination The purpose of requiring employers to use Form I-9s is to prevent hiring of aliens who are not authorized to work in the United States. However, the Form I-9 instructions announce that with the exception of refusing to hire undocumented aliens, it is illegal to discriminate against anyone in hiring situations based on national origin or citizenship status. The employer cannot specify which of the various documents specified in Form I-9 the employee may use to verify identity and eligibility status. The employer is also warned that refusal to hire an individual because of a future expiration date of work privileges in the U.S. may constitute illegal discrimination. Obtaining Visas Because of the scarcity of H-1B visas compared to need, and the technicality of all visa requirements for foreign workers, employers should choose experienced immigration attorneys to help them navigate the system. Timing can be essential—one year, all 65,000 H-1B visas allocated were given out within a single day. Special allocations are sometimes made, and quickly filled. Different categories of visas, such as L-1s, may be substituted for special situations, as when an employer brings foreign workers into the U.S. for one year, rather than the three years, plus renewals allowed for H-1B visa holders. And the Wars Continue . . . Blogs and Websites abound, on both sides of the H-1B visa issue, from hireamericansfirst.org to h1bmates.com. H-1B visa opponents sued the Bush administration in federal court last spring for extending visas for foreign students. And, with legislation stalled at the federal level, some state legislatures are tightening laws against hiring illegal workers. Gretta Spendlove is a shareholder with the law firm Durham Jones & Pinegar. She can be reached at gspendlove@djplaw.com.
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