This post is part of Priori’s new blog series “From Our Network,” where we feature lawyers in our network discussing important issues small businesses face. Today, we hear from immigration lawyer Sarah Edgecomb about what small businesses need to know when hiring foreign workers.
The multimillion dollar fines recently imposed on Indian tech firm Infosys due to alleged visa fraud provides an important cautionary tale for companies that rely on the services of foreign workers in the United States. Instead of obtaining the appropriate work visas for its foreign employees in the U.S., Infosys used short-term visas intended for brief business visits to send several Indian workers to U.S. job sites for long-term projects. Infosys has agreed to pay $34 million to settle all of its disputes with the U.S. Department of State and Department of Homeland Security. If Infosys had secured the proper visas for its workers and kept the employees’ paperwork in order, the firm could have avoided these eye-popping fines and the accompanying bad publicity.
All U.S. employers and multinationals maintaining U.S. offices are required to verify the identities and work authorization of their employees on USCIS Form I-9. Form I-9 must be completed by both the employee and the employer, and copies must be retained by the employer for at least three years after the date of hire or one year after the date of termination, whichever is later. If a prospective employee does not have work authorization based on her status as a U.S. citizen or permanent resident, she may be entitled to work legally in the U.S. under some circumstances (e.g., a pending green card or asylum petition). In most cases, however, the employer must sponsor the prospective employee for a work visa.
It is important to plan ahead if an employer anticipates the need to hire a foreign worker in the U.S., especially if the employee will hired through the H-1B visa program. H-1B visas are available to workers engaging in specialized occupations that require the equivalent of a bachelor’s degree or higher. There is an annual quota of 65,000 new H-1B visas, with an additional 20,000 H-1B visas available to individuals who hold advanced degrees from U.S. universities. Employers can begin filing H-1B petitions each year on April 1st, and approved workers can begin their jobs the following October 1st. In 2013, the cap was reached in the first five business days of the filing period.
To avoid the H-1B cap, multinationals are permitted to transfer managers, executives and workers with specialized knowledge to their U.S. offices through the L-1 visa program. Additionally, workers who can demonstrate that they hold outstanding ability in the arts, sciences or business based on previous awards, prizes, publications or exceptional financial success may qualify for O-1 visas. O-1 and L-1 visa petitions can be filed throughout the year but these visas are available to a much smaller pool of applicants than the H-1B pool.
The process of preparing and filing the appropriate visa petitions for white collar workers can be complicated and time-consuming, but it is imperative that employers go through the proper channels if they want to hire foreign workers in the U.S. without running afoul of federal employment and immigration laws.
Do you have any burning questions about immigration law? If you do, submit them in the comments section below, twitter, facebook or to firstname.lastname@example.org before Wednesday 11/6 at 11:59pm and Sarah Edgecomb will pick 1-2 to answer. We will post her answers to the blog later this week.
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