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.
It is also important for employers to be aware of prevailing wage structures for positions that may be filled by alien workers. By law, employers are required to compensate immigrant workers at roughly the same levels that non-aliens in the same positions and in the same geographic region earn. These laws were passed so that alien employees would be fairly compensated for their work. Businesses that neglect to meet minimum standards of compensation may be assessed fines and penalties by the DOL. Small business owners seeking "prevailing wage" information can contact their state's Bureau of Employment Services or secure a wage survey compiled by an authoritative source, such as an employment agency.
Small business owners also have to make certain that they file all the appropriate documentation before hiring an alien employee. An alien's visa application can be approved by the INS only after his or her would-be employer has filed the appropriate forms with the DOL. A Labor Certification Application is the most common one for employment-based visa classifications, while Labor Condition Applications are used for professional applicants, such as attorneys and doctors. Presuming that the application is approved, the employer may then proceed with the visa application. Visa applications can be filed with the nearest regional INS office. "It's mandatory that you include documentation, such as a diploma, verifying that the employee has the necessary educational requirements and is otherwise qualified for the position," wrote Reid. (The INS also will accept work experience in lieu of a degree in a particular field as long as the candidate proves that he or she has achieved a certain level of general education or technical expertise.) "The INS will review the visa application and the supporting documents for accuracy. Depending on the type of visa application, the INS review process can take anywhere from one to six months." Finally, small business owners should be aware that Labor Certification and Labor Condition Applications have to be revalidated every two years.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
This legislation, which included new sanctions for companies found in violation of alien labor regulations, should be consulted before making any hiring decisions regarding alien workers. Basically, the law states that American employers have to make sure that all of their employees are eligible to work in the United States when they begin their work. Immigration experts recommend that businesses conduct an INS Form I-9 audit to make sure that they are in full compliance with all pertinent immigration laws. Such audits not only help employers meet all legal obligations, but also may be regarded as evidence that they made good-faith attempts to follow employer verification requirements.
ALIEN EMPLOYEES AND AMERICAN CULTURE
Business owners who hire alien employees also may face challenges outside of the legal realm. Managing a culturally diverse work force can be a difficult process at times, although successful integration of people from different cultural and ethnic backgrounds can be a tremendously rewarding experience for a business on a wide range of levels, both socially and economically.
One key to creating a strong multicultural environment in the workplace is anticipating the difficulties that alien employees sometimes have with various aspects of American culture. Depictions of American culture are commonplace around the world, but as any American viewer can tell you, these depictions are often exaggerated or slanted, and they may provide aliens with fundamentally erroneous impressions of life in the United States. And, of course, immersion into any society, let alone one as complex and fast-moving as America's, can be a disorienting experience.
There are myriad aspects of life to which alien employees will have to adjust themselves, including a new language in many cases, recognition of the regional dialects, a new culture, different ways of shopping, banking, obtaining medical attention, commuting, to name but a few.
Another difficult adjustment for non-Americans has to do with socializing and a sense of community. If work interactions do not lead to corresponding social interactions, alien employees may view it as rejection. "One barrier to acceptance for international employees is the failure to follow U.S. workplace culture," one business consultant told Carla Joinson for her HR Magazine article on the subject. "For instance, in a brainstorming or solution-oriented meeting, it is our way to jump in, talk and solve the problem. However, folks from other cultures may feel this is a waste of time because we haven't thought it all through and are throwing out various solutions that may not work. We then say, 'What's wrong with them? Why don't they speak up?' Then, there's a domino effect: They get invited to meetings less and less." In addition, "inpat" employees may also struggle to adjust to the so-called "benefit gap" that exists between the United States and many other countries in such realms as annual paid vacation, length of lunch hour, and subsidies for commuting costs.
Experts agree that business owners who want to ease the transition for alien employees into the American workplace (and the larger community) can do so by establishing a system of education, mentoring, and training. "Companies that do a good job of accommodating diversity and are willing to locate and use specialized expertise find that the addition of international workers adds to their success," stated Joinson.
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Joinson, Carla. "The Impact of 'Inpats." HR Magazine. April 1999.
Powell, Gary N. Managing a Diverse Work Force. Second edition, Sage Publishing, Inc. 2004.
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