Tel (334) 832-9090
E-Mail: CLICK HERE
Published exclusively via the World
© Boyd F. Campbell, All Rights Reserved
Employer responsibilities when hiring foreign workers
The Social Security Administration (SSA) has taken steps to ensure the integrity of Social Security numbers. The changes to the way SSA assigns numbers and issues cards may cause a delay of several weeks or months in receiving a number. The employee may work while the Social Security number application is being processed.
Q. May I pay a worker
who, on the date of hire, cannot produce a Social Security number or Individual
Taxpayer Identification Number (ITIN)?
A. Yes. Current federal law does not prohibit U.S. employers from paying a new hire who cannot produce a Social Security number or ITIN, if the employer's payroll system allows it. Employers sometimes use the number 999-99-9999 for the first one or two payroll checks and substitute the employee's Social Security number or ITIN when it is provided.
Q. What causes delays
when foreign workers apply for Social Security numbers?
A. When foreign workers apply for Social Security numbers, SSA verifies their documents directly with the Department of Homeland Security (DHS). Most applications are verified immediately, but there can be -- and often are -- delays. Social Security understands that this process may affect companies who hire foreign workers, but in the interest of homeland security, direct verification from DHS is vital to ensuring the integrity of the Social Security number.
Q. What are an employer's
responsibilities when hiring foreign workers who don't have Social Security
A. Advise workers that they are required to apply for a Social Security number and card. If a worker applied for but has not yet received a Social Security number, you should get the following information as complete as possible: The worker's full name, address, date of birth, place of birth, father's full name, mother's full maiden name, gender and the date he or she applied for a Social Security number.
Q. What if the worker
doesn't have a Social Security number when wage reports (Forms W-2) are
due to Social Security?
A. If the worker applied for a card but didn't receive the number in time for filing, enter "Applied For" in Box d. (Reference: IRS Instructions for Forms W-2/W-3). If the worker applied for a card but didn't receive the number in time for filing, enter all zeros in the field for the Social Security number. (Reference: SSA's Magnetic Media Reporting and Electronic Filing Format) Remember to ask the worker to tell you the number and the exact name printed on the card, when he or she receives it.
Q. My foreign worker received
his or her Social Security number after I filed my wage report. What do
A. When you receive the worker's Social Security number, file Form W-2c (Corrected Wage and Tax Statement), to show the worker's number.
Q. What do I do about
those Social Security "no-match" letters?
A. Employers can protect themselves by posting the following notices -- in both English and Spanish -- on employee bulletin boards, and by enclosing the
notice in pay envelopes.
“Attention All Employees: In order to ensure that the Social Security taxes that are withdrawn from your wages are properly credited to your Social
Security records, please compare the name and Social Security number that appears on your check stub with the name and number on your Social
Security card to ensure that we are using the exact same information. Even the simplest typographical error can sometimes cause problems in the Social
Security Administration’s records, and your earnings might not be properly credited. Correcting this information is very important for your future Social
Security benefits should you become disabled or when you retire. Please contact the human resources office if you notice any errors. Thank you.”
“A todos los empleados, Atención: Para asegurarse de que los impuestos que se le sacan de su sueldo estén siendo reportados correctamente a su
archivo del Seguro Social, por favor compare el nombre y número de Seguro Social que aparecen en su talón de cheque con la información que está en
su tarjeta de Seguro Social para asegurarnos que estamos usando exactamente la misma información. Hay veces hasta el error tipográfico más sencillo
puede causar problemas para los archivos del Seguro Social, y es posible que no reciba el crédito correcto basado en su sueldo. Corregir esta información es muy importante para los beneficios de Seguro Social que Usted pueda recibir en el futuro si es que llega a quedar incapacitado o al jubilarse del
trabajo. Por favor comuníquese con la oficina inmediatamente sí Usted nota cualquier error. Gracias.”
IRS may fine businesses for social security number 'no-matches'
March 1, 2002, the Social Security Administration (SSA) stopped issuing
Social Security numbers to foreign nationals who requested them in order
to obtain a driver’s license. This policy change has hindered legal
immigrants without work authorization from getting driver’s licenses, opening
bank accounts and using other services for which a social security number
is required. SSA was forced by a federal district judge in Washington,
D.C., to abandon this policy, but problems remain. To read an article
on how this change in policy affected legal immigrants and visaholders
SSA has expanded the scope of its annual “no match” letter program. The program, which used to send a letter to employers who either had 11 or more employees whose social security numbers did not match SSA’s records (“no match”) or had a no match problem with at least 10 percent of the employees listed on the W–2 form, was revised so that any employer who had at least one no match employee received a letter. The new policy has resulted in employers receiving millions of "no-match" letters, confusion about the actions employers should take to resolve the discrepancy in the records, and the termination of a high percentage of employees listed on those letters. The chilling effect on the hiring of foreign nationals produced by the no-match letters may continue since the IRS has notified the business community that it will begin issuing fines to employers if they have employees whose social security numbers do not match the SSA’s records.
SSA's proposed rules on Social Security Number Verification System
Social Security Number Verification System (SSNVS), was implemented as
a pilot program for a small group of employers, now about 3,700, to allow
employers to verify the accuracy of an employee’s social security number
via the Internet. Concerns have been raised as to how the system
would comply with the Immigration Reform and Control Act of 1986 and safeguard
employee’s information from unauthorized verifications. There is also concern
about the General Accounting Office's finding that there is a 15 percent
error rate in the SSA database.
Recently the U.S. Department of Homeland Security published regulations to take over enforcement of the IRS "no-match" function using its Immigration and Customs Enforcement (ICE) agents to arrest, charge, and fine U.S. employers who are deemed to hire illegal aliens. The regulations would make use of the SSA database mandatory for more than 8 million U.S. employers affecting about 80 million U.S. workers. With an error rate of 15 percent in the SSA database, it is possible, if not likely that more than 12 million legal U.S. workers may lose their jobs.
Employment visas for U.S. businesses
U.S. companies can
stay competitive, despite the current tight U.S. labor market, by identifying
skilled foreign nationals and using U.S. visas to bring them into the United
States on a temporary basis. Temporary skilled labor may enter the
U.S. in different kinds of immigration status. Each nonimmigrant
visa category has its own set of statutory and regulatory requirements
and limitations. Today, violations of immigration laws can result
in serious consequences. Yet, U.S. employers need the skilled labor
that many foreigners can provide. This article describes the nonimmigrant
U.S. visas available to U.S. employers, and discusses compliance with the
Immigration and Nationality Act (INA), the Immigration Reform and Control
Act of 1986 (IRCA), and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRAIRA) and other federal immigration regulations.
Because of greater restrictions imposed by Congress on the hiring of foreign skilled labor, U.S. employers should work with U.S. immigration lawyers, who must be flexible in their approaches to specific cases and often must carefully plan the entry of foreign workers, in close cooperation with their clients, and advise their clients on applicable federal income tax laws, treaties, both foreign and domestic and, at times, U.S. foreign policy.
The nonimmigrant U.S. visas that U.S. businesses may use are identified by a letters and numbers, which refer to the applicable subsection in the Immigration and Nationality Act. They are as follows: B-1 (business visitor); H-1B (temporary specialty workers); H-2A (temporary or seasonal agricultural workers); H-2B (temporary nonagricultural workers); L-1 (intracompany transferees); O-1 (aliens of extraordinary ability); P-1 (internationally known athletes, individually or as part of a group, and entertainment groups); P-2 (performing artists under a reciprocal exchange program); P-3 (culturally unique entertainers); and TN (Canadian or Mexican professionals entering under the North American Free Trade Agreement). The regulations that govern the visas described below are contained in Title 8, Code of Federal Regulations. Remember that all of the following visas are for temporary visits and employment, anywhere from 90 days to seven years, depending upon the visa category. NOTE: E-1 (treaty trader) and E-2 (treaty investor) visas are addressed in a separate article: CLICK HERE.
Business visitors (B-1)
The B-1 visa is for
“business visitors” who seek to enter the United States for the purpose
of engaging in business, not to be employed. Still, your small-business
clients may wish to encourage foreign professionals to use this visa in
circumstances where a foreign entity has a contract with the the U.S. business,
and the business visitor is coming to the United States to work on a contract
held by his overseas employer.
The business visitor must be able to show that he has adequate funds available to support him while he is in the United States, and must show substantial ties to his country of residence. Immigration lawyers should advise their clients about the use of B-1 visas and assist them in complying with the law and regulations. B-1 visaholders should be able to show upon entry to the United States that no payment (except incidental support, such as housing allowances or a rental car, as examples) is to be received in the United States, and that there will be no employment with the U.S. business in the United States. An appropriate document to show an Immigration Control officer at a U.S. port of entry, for example, would be an English-language contract for services between the foreign national's employer overseas and the U.S. business.
For foreign nationals from Visa Waiver Program (VWP) countries, it may be advisable for the foreign national to obtain a B-1 visa stamp in his passport and to present a letter at the port of entry, fully disclosing the nature of the engagement in the United States. If the situation is one in which a foreign national wishes to enter the United States in B-1 visa status rather than H-1B (specialty worker visa, discussed below), an Immigration Control officer may well find the foreign national excludable under either 212(a)(6)(C) or 212(a)(7) of the Immigration and Nationality Act. The foreign national will have no right to a hearing before an Immigration Judge and no consular officer can overrule such findings made at the U.S. port of entry. To go to the U.S. Department of State web page on the Visa Waiver Program, CLICK HERE. The program expired on April 30, 2000, but Congress made it pemanent on October, 30, 2000. Effective February 21, 2002, Argentina was de-listed from the VWP.
U.S. employers have used the B-1 visa in lieu of the H-1B visa because commerce is time sensitive, and the H-1B visa takes longer to obtain. H-1B visas have also been in short supply, and the current allocation of 65,000 H-1B visas runs out faster and faster in response to unprecedented demand, even with the addition of 20,000 advanced-degree H-1B visas. For example, the federal government ran out of the first 65,000 H-1B visa allocation for Fiscal Year 2007 on May 26, 2006, and exhausted the 20,000 advanced-degree H-1B visa allocation for FY2007 on July 26, 2006. If past performance is any predictor of future results, Citizenship and Immigration Services (CIS) will allow U.S. employers to file petitions for the FY2008 allocation of H-1B visas after April 1, 2007, for a start date no earlier than October 1, 2007.
Congress, historically, has never allocated enough employment-based nonimmigrant visas -- including H-1B specialty worker visas and H-2B temporary worker visas -- to enable U.S. employers to legalize their workforce. This masterly inactivity on the part of Congress is all the more reprehensible because of both houses' desire to fine and jail U.S. employers for hiring illegal aliens.
Foreign nationals should enter the United States on the correct visa, depending upon the purpose of the foreign national’s entry. B-1 visaholders may commonly engage in commercial transactions, negotiate contracts, consult with business associates, engage in litigation, participate in scientific, educational, professional, or business conventions, conferences, or seminars, or undertake independent research. Bear in mind that the B-1 visaholder may not receive a salary, and only incidental expenses, from a U.S. employer. Application for the visa is made on a U.S. Department of State form, DS-156, which may be filed, with the appropriate fee, at any U.S. consulate around the world that handles such visa applications.
Specialty workers (H-1B)
This category includes
the H-1B visa mentioned above. This visa is for foreign workers in
a “specialty occupation,” defined as “an occupation that requires (a) theoretical
and practical application of a body of highly specialized knowledge, and
(b) attainment of a bachelor’s or higher degree in the specific specialty
(or its equivalent) as a minimum for entry into the occupation in the
The bachelor’s degree must be common in the industry in which the alien will be employed, or the U.S. employer must normally require such a degree or its equivalent for the position offered, or the nature of the specific duties of the position are so specialized and complex that knowledge required to perform the duties is usually associated with a bachelor’s or higher degree. Such degrees are normally evaluated by a U.S. credentials evaluator in order to show that the foreign degree is equivalent to a U.S. degree. Immigration lawyers use credentials evaluation services to evaluate foreign nationals’ academic and work experience credentials in order to meet these requirements.
If licensure of certification for the position is required by the state in which the foreign worker will be employed, he must obtain such licensure or certification. If he has not completed a bachelor’s degree for the position, he may show three years of experience for each year of college-level training, through progressively responsible positions directly related to the specialty.
Where a specialized training and substantial work experience may be a substitute for a bachelor’s degree requirement, it is not for a position requiring a master’s degree. Equivalency to a master’s degree may only be shown by possession of a bachelor’s degree, followed by at least five years of experience in the specialty occupation. In addition, the specialty worker’s wage must meet the “prevailing wage” test, which is done by submitting a request for a prevailing-wage determination to the state employment service, or by using a recognized wage survey for the area in which the employer does business and in which the alien will work. Following a prevailing wage determination, the employer must complete the labor condition attestation. It must be posted in two or more conspicuous places in the place of employment for a total of at least 10 days, and be furnished to the labor bargaining representative.
The number of H-1B visas is capped in any given fiscal year. The employer mails its petition on behalf of the alien to a CIS service center by completing Form I-129, with H supplement, and submitting an CIS filing fee of $190.00, plus $1,000 in compliance with the American Competitiveness and Workforce Improvement Act of 1998, if required. Premium (15-day) processing is available for H-1B visa petitions in exchange for payment to CIS of an additional $1,000.00 fee. For a link on this web site to more information about H-1B visas, CLICK HERE.
Intracompany transferees (L-1)
Another category of
visas is the “L” visa for “intracompany transferees. These visas
are available to foreign nationals who have worked abroad for at least
one continuous year within the preceding three years for a related business
entity to the U.S. business. The visa petitioner (the U.S. parent
or subsidiary) must be doing business in the United States and at least
one other country for the duration of the “L” visaholder’s stay in the
Foreign nationals qualify for this visa by showing “executive capacity,” “managerial capacity” (L-1A), or “specialized knowledge” (L-1B). The visa is valid for seven years for those in the “executive” and “managerial” categories, and for five years for those with “specialized knowledge.” Individual petitions are submitted to CIS service centers with the required $190.00 fee, plus the L supplement, and a $500.00 "anti-fraud" fee.
Nonprofit charitable, religious, educational, and arts organizations that have affiliate organizations in other countries may also use "L" visas.
Blanket petitions, wherein the petitioner must show that it has obtained approval for at least 10 “L” visa executives, managers, or aliens with “specialized knowledge” during the past 12 months, may be filed with the U.S. consulate where the overseas qualifying entity does business. To qualify for blanket treatment, the petitioning business may also show that it has U.S. subsidiaries or affiliates with combined annual sales of at least $25 million, or has a U.S. workforce of at least 1,000 employees. This approach often simplifies things for my clients and substantially reduces the time necessary to obtain the visa.
Fifteen-day premium processing ($1,000.00) is available for these "L" visa petitions. For a link on this web site to more information about "L" visas, CLICK HERE.
Individuals of extraordinary ability or achievement (O)
visas are issued to highly talented, professionals of high acclaim.
They are issued most often to artists, athletes, entertainers, and business
professionals who do not have professional degrees. The visas are
sometimes issued to scientists and educators. The visas are sometimes
used in lieu of the H-1B visas, which are subject to wage restraints and
a restrictive visa cap (discussed above).
The O-1 category is for aliens of extraordinary ability; O-2 is for certain aliens accompanying O-1 aliens in the arts or athletics; O-3 is for dependents of aliens in the O-1 and O-2 categories. O-1 visa applicants must demonstrate sustained national or international acclaim, and be recognized in the field through extensive documentation. O-1 aliens need not have a foreign residence they do not intend to abandon to qualify for this nonimmigrant visa. O-2 (accompanying) aliens, however, must maintain a foreign residence they do not intend to abandon.
O-2 aliens must have skills and experience with the O-1 alien not of a general nature, which are critical either based upon a pre-existing, long-standing working relationship, or with respect to specific production. The continuing participation of the O-2 alien must be shown to be essential for successful completion of the production. Form I-129, plus supporting documentation and O supplement is filed with a CIS service center, along with a filing fee of $190.00, which must accompany the visa petition.
Athletes and entertainment groups (P)
visas are appropriate for athletes and entertainment groups (but not individuals).
P-1 visa status is generally accorded internationally known athletes, individually
or as part of a group or team, and to entertainment groups. P-2 visa
status is accorded to performing artists under the auspices of a reciprocal
exchange program. P-3 visa status is accorded to culturally unique
entertainers. These visa classifications include accompanying personnel.
The P-4 visa category is for dependents of aliens in P-1, P-2, and P-3 visa status. For members of entertainment groups, the P-1 classification is generally accorded to a group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. Each alien seeking to enter the United States on the P-1 visa must show that he or she had a sustained and substantial relationship with the group of at least a year, and must be entering the United States solely to perform or entertain with the group. (Only 75 percent of group members must show that they had a sustained and substantial relationship with the group for at least a year.)
P-2 and P-3 visas are issued to artists and entertainers who perform individually or as part of a group in a reciprocal exchange program between one or more U.S. organizations and one or more organizations in other countries. Labor unions are usually involved in establishing the exchange program. The exchange must be similar in caliber of artists and entertainers, in terms and conditions of employment, and in numbers of aliens involved in the exchange. P-3 visas are issued to culturally unique artists or entertainers -- individually, or as a group -- who are coming to the United States to develop, interpret, represent, coach, or teach their particular art or discipline. This visa can fit many types of artists and entertainers.
All "P" visa categories allow for the accompaniment of "essential support" personnel. Form I-129, plus supporting documentation and P supplement is filed with a CIS service center, along with a filing fee of $190.00, which must accompany the visa petition.
Trade NAFTA visas (TN)
U.S. employers hiring
Canadians and Mexicans can benefit from this visa, which is governed by
the North American Free Trade Agreement (NAFTA), which went into effect
on January 1, 1994. This visa category has become more important
to U.S. business as the visa cap for H-1B visas has been reached prior
to the end of the last four fiscal years.
TN visa status is available for only 63 professions listed in NAFTA Annex 1603. A licentiatura degree (normally five years) is an alternative to the bachelor’s degree, which need not be obtained in a four-year program. Canadians and Mexicans in “TN” visa status are expressly prohibited from engaging in self-employment. For a link on this web site to more information about TN visas, CLICK HERE.
While U.S. businesses may file petitions for Canadians a class “A” U.S. ports of entry, a U.S. airport handling international traffic, or a U.S. pre-clearance/pre-flight inspection station, petitions for Mexicans may only be filed at the INS Nebraska Service Center. Canadian and Mexican applicants are issued an Form I-94, Arrival-Departure Record, valid for a period not to exceed one year. Canadians may apply for an extension of stay at the port of entry or by the petitioner’s filing of Form I-129 at a CIS service center. Mexicans must receive extensions through the petitioner’s filing of the I-129 form with the Nebraska Service Center.
This article is not meant to be a comprehensive explanation of visa procedures. There are many issues, including changes in employment, changes in employers, what to do about dependents, etc., that this article has not addressed. For example, there are many issues with regard to dealing with the cap on H-1B visa numbers that must be addressed, and many issues arise with regard to the relationship between U.S. businesses and foreign parents or subsidiaries concerning “L” visas and foreign travel.
For more information about U.S. immigration law and visas, you should consult a qualified U.S. immigration lawyer to advise you. Web links are provided below to assist you in acquainting yourself with Citizenship and Immigration Services policies and procedures and those of the U.S. Department of State. If application is made through a CIS service center, the filing fee of $190.00 must accompany the petition.
Links to other helpful information and web sites
You can obtain information about U.S. immigration and nationality law and U.S. visas by clicking on the following web links:
economic development links
Department of Homeland Security
Citizenship and Immigration Services
CIS forms download page
Immigration and Customs Enforcement
Customs and Border Protection
Immigration and nationality law and regulations
U.S. Department of State, Bureau of Consular Affairs
U.S. Department of State Visa Waiver Program
U.S. embassy and consulate web sites around the world
American Immigration Lawyers Association
Boyd F. Campbell has practiced immigration and nationality law in Montgomery, Alabama, since 1988, and is a member in good standing of the American Immigration Lawyers Association. He is a past Chair of the Immigration Law Committee of the American Bar Association’s General Practice, Solo and Small Firm Lawyers Section, and serves as Chair of the International Law Section of the Alabama State Bar. From 1994 to 1998, he served on the ABA's Coordinating Committee on Immigration Law, the organization's policy-making arm. He is a civil law notary, having been appointed by the Alabama Secretary of State to this official position in August, 2001. For more information about civil law notaries, CLICK HERE. For more information about Mr. Campbell, CLICK HERE.
This page is sponsored
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 U.S.A.
Tel + 334-832-9090
E-mail: CLICK HERE
NAVIGATION: BACK to Immigration Law Center Home Page: CLICK HERE