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Sep 1, 1996 12:00 AM
In the wake of major legislative efforts to crack down on immigration and increased enforcement by the INS (Immigration and Naturalization Service), employers should be aware of the laws and consequences associated with hiring foreign workers.
The most recent measure taken to tighten immigration occurred with the March 20 INS announcement of the new "fraud-resistant" Alien Registration Receipt Card. Commonly known as the green card, old Form 1-151, issued before 1979 no longer will be accepted as valid employment authorization identification and those issued after 1979 must be replaced upon the expiration date. Cards will also expire every 10 years in order to improve card features and reduce counterfeiting.
Although employers may use other documents listed on Form I-9 to verify employment eligibility, INS Deputy Commissioner Chris Sale is urging residents to apply for the new card or to consider citizenship as an alternative to avoid renewal every 10 years. The INS will not penalize employers who may have mistakenly hired illegal aliens with fraudulent documentation prior to March 20, 1996. Employees presenting an expired Form I-151 for completion of the I-9 should be referred to the INS for a Form I-551.
Frequent changes in laws have forced employers to become aware of the immigration issue. However, complying with these laws can be a difficult and confusing task for employers hiring legal alien residents and foreign nationals. Keeping abreast of proper documentation requirements and legislation is one way for employers to avoid costly hiring mistakes.
First, employers can avoid hiring unauthorized individuals by complying with the Immigration Reform and Control Act of 1986, which requires all new employees to complete the Employment Eligibility Verification form (Form I-9) within three business days from the date of hire. Employers who fail to comply with the employment eligibility verification requirement or knowingly hire or continue to employ illegal aliens are subject to civil fines to $10,000 for subsequent offenses and criminal penalties including a $3,000 fine and three months imprisonment. Paperwork violations can range from $100 to $1,000 for each improperly documented employee.
Although immigration reform has been the subject of recent debate, foreign nationals employed by American companies through special work permits have enhanced national and international competitiveness. H-1B, L-1, and TN employment visas allow U.S. companies to temporarily hire highly trained individuals with special training and experience.
* Firms unable to obtain an individual with a particular skill in the United States can hire a non-immigrant worker through the H-1B visa for up to three years. These individuals are professionals highly knowledgeable in a specialty area with a minimum of a bachelor's degree in that field. The employer must prove that the individual will receive a salary higher than the actual or prevailing wage and that similarly employed Americans will not be negatively affected by the foreign national's hiring. Commonly recognized H-1B specialty fields include engineers, systems analysts, lawyers, scientists, teachers/professors, financial analysts and market research analysts. The difficult process of obtaining this type of work permit is supervised by the Dept. of Labor with involvement by the INS and the State Dept.
* The L-1 or Intracompany Transfer Visas are used when an international company transfers an executive, managerial or specialty-knowledge employee from a parent or subsidiary abroad to a position in the United States. The employee must have worked for the company for at least one year within the three years immediately preceding entry into the United States. L-1 Visas must be approved by the INS and by the U.S. Consulate with jurisdiction over the applicant.
* Another specialty work permit, the TN (Treaty NAFTA) Visa, allows professional engineers, college professors, computer systems analysts, management consultants and certain types of scientists from Canada and Mexico to temporarily work in the United States. Canadians can obtain the visa at any port of entry while Mexicans have to apply through the Dept. of Labor similar to the H-1 process, without the three-year limitation. TN Visas are valid for one year and may be renewed indefinitely as long as the employer can prove the employee's necessity to the company.
The task of hiring a knowledgeable, qualified, experienced workforce is becoming increasingly difficult. However, to avoid expensive fines, employers must be careful to hire only those individuals authorized to work in the United States. Despite drawbacks associated with hiring authorized foreign workers, employers should consider the benefits of a diversified workforce, access to employees with specialty knowledge in a particular field or technology and improved competitiveness on a national and international level before dismissing the option.
BRIAN W. GILL, Senior vice president of education and human relations, Printing Industries of America, Alexandria, VA