Alien employees are workers who take positions in American businesses but who are not citizens of the United States. Those employees who enter the country and secure employment legally do so by securing 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 America, while nonimmigrant visas provide for temporary stays in the country of up to seven years. In addition, some immigrants enter the United States and get work illegally, but small business owners should make sure that they do not hire such individuals for reasons of legality.
Alien employees can be a valuable component of a small business owner's work force, but consultants and legal experts note that hiring alien employees will necessitate additional paperwork to ensure that the business owner does not incur legal penalties for using unauthorized labor. As Mary E. Reid admitted in Small Business Reports, "determining [immigration] visa categories and adhering to proper procedures can be quite a challenge…. All too often, employers are unaware of prospective employees'visa status and of the administrative burden involved in obtaining work authorization. Becoming aware of the constraints of the immigration laws can save valuable time when there's a job waiting to be performed."
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, on the other hand, which provide for stays of up to seven years within the U.S., are more frequently bestowed upon aliens working in the following areas: aliens entering the country for business purposes; treaty traders and investors; students engaged in educational pursuits (work authorization is available for practical training after they complete their course of study); registered nurses; temporary agricultural, service, or labor workers; trainees; intracompany transfers; artists and entertainers; athletes; and aliens of "distinguished merit" or "extraordinary ability," especially in such fields as the sciences, 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. In the 1990s alone, the U.S. government has passed major laws like the Immigration Act of 1990, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) that have had a direct impact on the hiring and work environment for businesses and immigrants alike. Moreover, these laws are subject to interpretation and new regulations from U.S. agencies such as the Department of Labor (DOL) and the Immigration and Naturalization Service (INS), which are charged with making sure that companies and individuals obey the nation's laws in this area.
Still, these restrictions on alien hiring can seem ominous or bewildering to small business owners who are unfamiliar with the various requirements. Employers, then, 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. "Although it is discriminatory to ask whether applicants are U.S. citizens, your employment application can—and should—ask prospective employees whether they are authorized to work in the United States and if so, under what authority (citizenship or an employment visa)," said Reid.
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 their citizenship. Given this situation, said Reid, "you [the small business owner] should determine your company's policy of sponsoring work visas and apply it equally to all employees. Having a policy of sponsoring work visas doesn't mean you have to retain an attorney for the employee or pay any visa filing fees. Your only obligation is signing the visa forms and complying with wage and hiring requirements, which can be burdensome."
It is also important for employers to be aware of prevailing wage structures for positions that may be filled by alien workers. Over the past several years, the U.S. government has passed laws in which 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 measures were passed so that alien employees were compensated fairly for their work. Businesses that neglect to meet minimum standards of compensation as laid out in American labor law 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. Reid noted, however, that the DOL has traditionally regarded state employment bureau calculations as the most authoritative sources in this regard.
Small business owners also have to make certain that they file all the appropriate documentation before hiring an alien employee. According to Small Business Reports, 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 new 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. According to Workforce, immigration experts recommend that businesses conduct a serious 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. "The reality is, the United States is as foreign and strange to international assignees as other countries are to Americans," stated Charlene Marmer Solomon in Workforce.
Indeed, Solomon noted that there are myriad aspects of life with which alien employees will have to familiarize themselves, including language acquisition (and recognition of the regional dialects), cultural orientation, education options, transportation options and rules, securing credit and bank accounts, gaining insurance and access to medical services, and figuring out how the nation's medical system works. "Put yourself in your [immigrant employee's] shoes," added Carla Joinson in HR Magazine. "You've moved to a foreign country, started a new job, and now must pay for medical benefits that were free in your own country. On top of that, you can't understand American slang."
Another difficult adjustment for non-Americans, said Solomon, "has to do with socializing and 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 Joinson. "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 be 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."