Alien Employees

Related Terms: Cross-Cultural/International Communication

An alien employee is any employee working in the United States who is not a citizen of the United States. Those employees who enter the country and secure employment legally do so by first obtaining employment visas. Employment visas are classified into two categories: immigrant visas and nonimmigrant visas. Immigrant visas are used by aliens who are approved for permanent residency in the U.S., while nonimmigrant visas provide for temporary stays in the country of up to seven years.

The subject of alien employees is often complicated by the issue of illegal aliens. Foreigners may enter the U.S. legally, on, for example, a tourist visa, and then seek employment illegally. Or, foreigners may enter the country illegally. Employers must be very careful when hiring to establish that a prospective foreign employee is eligible to work in the U.S.

Immigration law has often been characterized as the second most complicated field of U.S. law, second only to tax law. As a result, it is advisable for any business wishing to employ foreign nationals or alien employees to either develop an in-house expertise in immigration law or consult with an expert in the field. For many businesses, alien employees are of great value, bringing unique talents and knowledge to the business and thereby justifying the additional work involved in hiring them.

IMMIGRANT AND NONIMMIGRANT VISAS

Immigrant visas are given to aliens who are granted permanent residency in the United States. These individuals tend to be highly educated persons with experience and skills that are in high demand by companies in the United States. Immigrant visas that are most frequently granted are in the following employment areas: business executives and managers; notable professors, researchers, and other academics; advanced degree professionals; professionals with bachelor's degrees; investors in new business ventures; and aliens "of exceptional beauty." Skilled and unskilled workers are also sometimes granted immigrant visas.

Nonimmigrant visas are issued to foreigners whose stay in the U.S. will be temporary, though may extend to a length of seven years. There are 20 nonimmigrant visa classifications, of which only 6 normally allow for work while in the U.S. These nonimmigrant visas are frequently bestowed upon aliens working in the following areas: students engaged in educational pursuits (work authorization is available for practical training after they complete their course of study); registered nurses; temporary agricultural workers; workers in the service sector; trainees; intra-company transfers; artists and entertainers; athletes; and aliens of "distinguished merit" or "extraordinary ability," especially in such fields as the sciences, high technology, education, the arts, business, or athletics.

KEY LEGAL CONSIDERATIONS PERTAINING TO ALIEN EMPLOYEES

The regulatory picture for employing alien workers is an ever-changing one in the United States. The 1990s was a period of economic growth and saw U.S. corporations turn strongly to alien employees to fill positions in specialized areas, high technology in particular. With the slowing of the economy in the first decade of the new century, and the terrorist attacks in the U.S. in the middle of 2001, the general mood regarding alien workers has changed.

The U.S. government passed major laws during the last 15 years related to immigration. Among them were the Immigration Act of 1990, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the Enhanced Border Security and Visa Entry Reform Act of 2002. Each of these has had a direct impact on the hiring and work environment for businesses and immigrants alike. These laws are interpreted and enforced by U.S. agencies such as the Department of Labor (DOL) and the Immigration and Naturalization Service (INS).

In 2004 President George W. Bush proposed legislation that would both strengthen efforts along the U.S. border to halt the entry of illegal aliens and establish a temporary or guest worker program. Under the proposed plan, undocumented immigrants would be allowed to get a three-year work visa, extendable for an additional three years. This proposed legislation has met with little support and as of the end of 2005 has failed to gain traction.

Two additional proposed bills await action by Congress in 2006. They are the Secure America and Orderly Immigration Act and the Comprehensive Enforcement and Immigration Reform Act of 2005. Each of these proposed bills would alter existing visa requirements, annual quotas, and the penalties imposed on employers who hire illegal workers.

HIRING ALIEN EMPLOYEES

The restrictions on alien hiring place a lot of requirements on employers. Companies should make sure that they are familiar with the basics of utilizing alien employees in their workplaces. There are a few steps that all small business owners should take when hiring new employees to minimize the likelihood of employing an unauthorized worker and possibly incurring legal penalties.

First, employers should ask all job applicants if they are authorized to work in the United States. It is discriminatory to ask whether applicants for employment are U.S. citizens, however, all employment applications can—and should—ask prospective employees whether they are authorized to work in the United States and if so, establish the basis of this authorization-citizenship or an employment visa. In an article entitled "The Visa Maze," Bill Reilly, unit chief for the office of investigations at the U.S. Immigration and Customs Enforcement (ICE), talks about a program that small businesses can join that will help them comply with the law. Reilly suggests that entrepreneurs join Basic Pilot, an employment-verification system run by ICE that determines whether or not a non-citizen is eligible to work in the U.S. by searching databases at the Social Security Administration and the Homeland Security Department.

For prospective employees who do have visas, it is sometimes necessary for employers to file appropriate documentation with the INS before the person in question can begin work. Requirements vary considerably from situation to situation, so it is often a good idea for small businesses to secure the services of an attorney with experience in immigration law for guidance. While companies are obviously under no obligation to hire a person who has the appropriate authorization to work in the United States, they also may not discriminate against an alien authorized to work in America on the basis of his or her citizenship. Given this situation, a company should determine its policy of sponsoring work visas and apply it equally to all employees. Such a policy need only oblige a company to sign the visa forms for alien employees and complying with wage and hiring requirements.

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