Hiring Foreign Workers in the Current Immigration Climate

Note: Former Immigration and Naturalization Service (INS) is now called U.S. Citizenship and Immigration Services (USCIS).

The tragic events of September 11 have focused the country’s attention on the shortcomings of the Immigration and Naturalization Service (“INS”). The INS failed to keep track of some of the terrorists who entered the U.S. on student visas but never showed up at their chosen schools. In addition, the INS has been vilified for mailing student visa approval notice for two of the terrorists, on the six-month anniversary of the attacks, to the Florida flight school where they learned to fly.

Adding to the controversy, in March an INS inspector in Virginia improperly admitted four Pakistani crew members of an international freighter into the United States with shore leave visa waivers, even though Pakistani citizens are not eligible for such waivers. The four men did not return to the ship and have disappeared. The aftershock of these events has far-reaching consequences not only for the INS, legal and illegal aliens, but also for U.S. employers.

For employers, the current immigration climate means greater scrutiny may be applied to employment practices form inside and outside an organization. The INS and the U.S. Department of Labor (“DOL”) have indicated they will step up their enforcement activities. In the meantime, foreign workers currently employed in the United States may be more sensitive to what they perceive to be anti-immigration sentiment form co-workers or management. Despite thse circumstances, hiring foreign workers is still a viable and attractive method of satisfying workforce requirements. The prospect of doing so, however, will require extra diligence on the part of the employer.

One area of potential danger awaiting employers involves submissions to the DOL and the INS on behalf of foreign workers your company may seek to hire. Two of the most common ways to employ a foreign worker ate through an H-1B visa or an employment-based green card. An H-1B allows an employer to hire a foreign worker in a “specialty occupation,” provided the employer pays the foreign worker the prevailing wage (the average wage paid to similar U.S. workers in the geographic area) and complies with certain other condidtions of employment.

The process for obtaining an H-1B requires an often-complicated series of filings with the state’s employment agency, the DOL, and the INS. An employer may also sponsor a foreign worker for a green card, whic whould convey lawful permanent resident status to the foreign worker. The green card process can be significantly more coplicated than the H-1B, including a laborious process of demonstrating the lack of qualified U.S. workers for the position.

Of course, pitfalls abound in both of these processes. For example, economic considerations frequently favor shifting the expense of the H-1B or green card process (filing fees, legal fees, etc.) to the employee. Current DOL and INS regulations, however, prohibit the employer from allowing the foreign worker to pay the filing fees or legal fees associated with the H-1B because these fees are considered the employer’s business expense. Allowing the employee to pay the filing fees or attorney fees can result in a fine from $1,000 to $35,000. On the other hand, green card regulations do not prohibit the foreign worker from paying these fees because of the long-lasting benefit of a green card to the foreign worker. Such payments are considered a deduction from the first year’s wage and are permissible as long as the expense does not reduce the employee’s wage below the prevailing wage required for the position.

Practical concerns also must be considered. Most important, with any filing, an attorney undertakes dual representation of the foreign worker and the employer. This can cause friction between the potentially conflicting interests of the foreign worker (often desperate for valid employment status and not subject to civil penalties for the employer’s failure to adhere to federal regulations) and the employer (seeking to hire the foreign worker within the bounds of the law). An employer must consider that an attorney who is hired and paid by the foreign worker, though not necessarily ill-willed toward the employer, may not have the employer’s interests foremost in his or her mind when preparing the H-1B or green card paperwork.

As an illustration, I recently assisted an employer who had allowed a foreign worker to select, hire, and pay an attorney to prepare and file an H-1B. The attorney neglected to inform the employer that this arrangement was illegal. Furthermore, when the H-1B was filed, the offered position was listed as a computer analyst position when in fact it was clerical and would not qualify for an H-1B. When the employer pointed out that the wage being offered to the foreign worker was only half of the required prevailing wage, the attorney told the employer that it could avoid paying the full prevailing wage by listing the position as part-time when in fact the foreign worker would be working full-time for half of the prevailing wage. This advice is clearly contrary to law.

In a second case, an attorney hired by the foreign worker failed to inform an employer of its legal responsibility to inform its workforce that it intended to hire a foreign worker until well after the employer was required to do so, subjecting the employer to possible penalties from the DOL. Similar dangers can arise in the green card process, during which an employer is required to make a number of representations about its business to various government agencies, including detailed descriptions of the position offered and the employer’s unsuccessful
efforts to recruit qualified U.S. workers.

Given the likelihood of increased investigatory and enforcement activity by the DOL and the INS, these examples demonstrate why extra attention must be paid to protecting your business in immigration matters. Be prepared for additional scrutiny and protect yourself from the legal and practical pitfalls of the immigration process by retaining an attorney who will protect your company’s interests in all immigration matters.

About the Author-Matthew W. Hoyt is an attorney in the Employment and Labor Group of the Columbus, Ohio, office of Baker & Hostetler. Mr. Hoyt represents clients in all employee relations, human resources, and immigration matters. He is a member of the American Immigration Lawyers Association (AILA). Mr. Hoyt received his J.D. degree from the University of Notre Dame and his B.A. degree from Michigan State University.

© 2002 Baker & Hostetler LLP

See also…

Labor and Employment Law

Hiring, Firing, Wrongful Termination

H-1B Worker Visas