Hiring a non-citizen - need your help!

mjuliano

For the first time since I've been in HR, we are hiring a non-U.S. citizen. I'm not sure what forms I'll need to fill out/have her fill out. Can anyone help? I'm in Illinois, and the soon-to-be employee is from Bulgaria.

Thanks in advance!

Don D

On what basis was a decision made that you can employ a non US citizen? What are you going to do when/if you learn that the individual cannot produce documentation sufficient for the completion of your I-9 form? If you have been through the USDOL and (former) INS and have received government permission to employ a person under one of the immigration visa programs for non-resident aliens, then those organizations will have advised you on the process steps. If not, how else might you plan to do it, legally?

mjuliano

I had no part in the decision-making process. I did not even know that she was not a US citizen until today. As I said, this is my first time dealing with this sort of situation, so I really have no clue as to what needs to be done.

LFernandes

What type of Visa is this person on? Student, H1B1? There are many different types and each one of them has their own set of forms. You may want to look up the forms on the INS website. But, because of the complexity of it all, I would suggest going through an Immigraton Lawyer. That's what we do.

mjuliano

Yeah, that sounds like a good idea. I don't want to make any mistakes.

Betty I_O

Once burned, twice shy for us!! Linda is correct--the complexities are enormous, and you need to be sure you've covered ALL the bases. If we even consider hiring a non-citizen, we consult with our immigration attorney. He is our "devil's advocate" also. . . the first questions from him always are "Why do you need this particular individual--is there nobody in the whole of the United States who can perform the job?" "What have you done to make sure/how will you prove there are no viable US candidates?"

mjuliano

Wow, this is turning out to be a lot trickier than I expected. I wish someone would've mentioned that this person was not a US citizen a week or so ago. That would've saved us a lot of time, I'm thinking. We've already offered her the job, so... Ick. Thanks for all your help.

gillian2

Non-citizens can be hired as much as you want to providing that they have the right to work in the US. If they don't have the right to work in the US then they need to come in with the right visa, otherwise they can't work. If you are hiring this person into some sort of job where there isn't a ready supply of labor available in the US, the visa you want is the H1B (employer sponsorship) and getting that visa is complex. Typically, though, the potential new employee already knows this and has an attorney working on their behalf.

mjuliano

Okay, this is what Jonathan, the manager who hired her has just told me:

[i]She already has a visa that allows her to work. It will expire at the end of January 2004. She said that if we like her work, we can then file a petition (at her expense) to extend her visa. So, we don't have to worry about the application for now.

When she starts, we just need to complete the usual forms about her being eligible to work in the U.S. I think that we do that for all new employees regardless of citizenship, right?[/i]

gillian2

Correct - just go through the I-9 process. You should check out the visa that she has. If she is already on an H1B through a former employer, the right to work only applies to the employer that sponsored her, not you. Even though her card says "authorized to work in the US", INS is not giving the full scoop. The person is authorized as noted on the card, but just for the employer sponsor.

Don D

I've been told by a prominant immigration attorney that 'although the H1B is not technically 'portable', the INS will allow people all day long to shop them as if they were'. If a person was coming into our employment with a short lived visa, set to expire, I would only absorb that liability on the advice of an immigration attorney. And, contrary to Gillian's advice, I would never, ever, ever sponsor one who was using his own attorney and paying for it himself. That is the largest can of worms in the entire bait store. The sponsoring employer certifies authenticity on numerous forms, throughout a multi-year period of time, and a responsible immigration attorney will not advise his employer/client base to have the alien fund this process himself.

gillian2

Well, one only responds according to their experience. I had to fire an employee once because the INS didn't view the employment as "portable". I have also found that the employee attorneys that I have worked with have been very helpful.

Pork

GO TO THE SSN AND NAME MISMATCH 800-772-6270 EFFORT BEFORE YOU DO ANOTHER THING. You'll need the correct name spelling, the date of birth, the SS number assigned to this person, and the fact that the ee is female. The 800 number will ask for your company name and fedID and then the above information on the person. SSA will verify the name and SSN as one that they issued this unknown person, if no match then cut your companies'involvement with this person. Let the INS know of this person's name, phone number, and address. We have all learned to be wary of all foreign nationals who come calling with potential false ID. Don't accept what the manager/supervisor says about the verifiability of this person, do it yourself. Even the Europeans can buy IDs from off the street, from the same vendor that sells to the Hispanic/Oriental/Africian or whatever. After the Social Security Administration verifies their SSN and NAME match, then continue to enroll, make special note of the expiration of the work permit for that is when you will also have to redo the I-9 Form. Begin as soon as possible on the sponsorship application for it currently is taking about 2 1/2 years. This is personal experience! Do not let the manager get overly excitied about this ee for you may not be able to provide the individual with a place to work!

mjuliano

If she's here on a visa, would she even have an SSN?

Pork

She has got to have a SSN if she is permitted to work for compensation.
PORK

Don D

If it's a work visa, yes, she will have an SSA account card with a valid SSN. You might find that some on student visas and visitor visas will not have SSNs, but they are not allowed under any circumstances to work legally without one. In all states but California, she would also have to have a SS card in order to obtain a drivers license. California, at the moment, doesn't find that to be a valid concern.

HRsage

Ouch Don, quit rubbing it in. We're working on correcting that mistake, believe me.

Pork

EVERY ONE: This is currently a can of worms with teeth! Pay close attention to "Dandy Don" and "PORK" he has been on the government side and I am currently in a 13 case nightmare, with 13 illegals (confessed as a part of the Bill Clinton Amnesty program), which my George Bush agreed with President Fox that the Amnesty program would be extended; the extended part never went through, but no one told the world nor the illegal aliens that the Amnesty program was never extended. I did not know so when they confessed I filled out the application and sponsorship applications and sent them in in 2001.

This spring/summer our state coordinator corresponds with me to get the forms corrected and the wording just right. Last month I received a notice for the requirement to advertise for the positions in which our illegal aliens are placed. To do that would be false advertising, and suredly there would be US CITIZENS who would respond, as they have always responded through the unemployed, job service centers call WIN CENTERS. If I had no position which was vacant I would not be able to hire the US Citizen except as an excess to our needs employee or face his/her suite for discrimination. A real catch 22! You see the Amnesty program use the 151 A & B system to get the illegals registered. The rules call for an advertisement in local newspapers to discover that one has a position to fill but no US Citizens responded, therefore one can then proceed with the request of DOL/INS to go over seas, OFFSHORE to acquire a qualified foreign national to fill the position or positions, after which one would be hired and reports to work. Great but they are already here!!!!!

Presently, I have a congressman and the Regional Director of Certification (THE FEDS) of these type cases, scratching their heads (for lack of a more meaningful word) as to what to do with all of these illegals in our country that want a change in status. WHAT GUIDANCE WILL THEY GIVE THIS ONE HR FOR MY LITTLE GROUP OF 13. I will not terminate without government at some level directing that action, otherwise, National Origin slaps us in the face. The illegals are great workers and they were sent to us for employment by the Government of the State of Mississippi and the Department of Labor as persons with a legal right and permit to work. We hired them in good faith, they confessed in good faith, we assisted them in good faith to protect the ee and to get the application process going.

I'll let all of you know when the DOL & the Mississippi Employment Security Commission let's us know what to do next. I have ask the Mississippi Delegation of congressmen to help the nation straighten out the mess. I am a little fish in a very large pool and caught on the fishing line and I'm getting real tired of swimming away from the alligators trying to eat me up. PORK MAKES A REAL GOOD FISH BAIT!!!

PORK

LFernandes

[font size="1" color="#FF0000"]LAST EDITED ON 09-26-03 AT 03:19PM (CST)[/font][p]One more note - H1B1's are expensive when going through an attorney. Be prepared to fork out at least 5K in expenses. I don't like doing them which is why I have gladly given the responsibility to my boss! 8-}

I sympathize with you Pork. We had one employee who was with us for 4 years with an Green card. Then one day I get this letter from SS saying that her social doesn't match their database. When asking the employee about it, she admits to buying the document off the street and falsifying her employment eligibility. Needless to say, I had to walk the employee out of the building immediately with the supervisor hot on my heels saying "can't she continue working - she has work to do!". So verify the information yourself and contact the SS Administration. If things don't match don't hire until all the paperwork is in order and you're happy with it!

LFernandes

mjuliano

Update: Our lawyer says all we need to do is verify her SSN matches her name and everything (which I've done, and everything checks out), and have her fill out the I-9 form.

Pork

MJULIANO: Great; Now James pull the plug on my thread where I mistakenly checked to be notified when a new thread has been posted. I do not know how to do this and my e-mail gong on this post is about worn out! PORK

Don D

update to Juliano's update: Alert: Your lawyer is a fool. Or, perhaps not. Maybe he realizes he stands to make even more money if the company screws this up.

Pork

Mjuliano: JAMES, PLEASE PLUG THE PLUG ON MY ALERT CHECK, SO I CAN GET SOME WORK DONE! GONG IS VERY WEEK NOW, MJULIANO: don't worry about "Dandy Don"s" last post, you have a wonderful attorney, I'm sure and he'll wrap his big hands around this issue and personally take care of the future on your behalf. He is right it is very simple, just review the documents as best you can after the futuree has completed the I-9 and all will be good! That is exactly what I did and I have 13 illegals on my hands working very hard and hoping I'll be able to get their current status changed to legal. All you can do is call the SSA over the 800 number and if it all checks out then all will be good until their work permit expires and then you have to do it all over again, so put a suspense notice on your ee's file with the expiration date back up 60 days and that should be the day that you and the foreign national start to work on the next I-9.

I'M OUT OF HERE WHETHER JAMES GES ME UNPLUGGED OR NOT.

PORK

Don D

Pork: perhaps I misunderstood her last post, which is entirely possible with the day I'm having. I thought her lawyer said not to worry about it, just take a look at the documents and fill out the I-9. My apologies to the attorney if he was indeed directing her down the correct path. And to you if your gong keeps gonging. It's like the energizer bunny.

mjuliano

What he told me is that there is no other paperwork that is necessary to fill out in order for us to legally employ her. I am interested in what paperwork you believe I should have her fill out. That was, in fact, my purpose in starting this thread. I believe I explained that I am inexperienced with this, and I would appreciate some clear and pleasant advice, but if you're just going to be demeaning and sarcastic, save it.

Pork

MJULIANO: GET A SHELL ON, we HRs are goodier than gold, welcome aboard. Sorry that we have not blessed your day; since you are on here you might as well run down the list of topics and ever time you see I-9 you'll find a lot of words on this subject. It is only one piece of paper but potentially a very expensive piece of paper. There are about 6.4 million illegal (foreign nationals) that are currently breathing down upon all HRs shoulders. My 13 do not know whether to pull stakes and run or hang in there with me trying to fix their concerns. It is a very frustrating situation and I've been working it since the spring of 2001. Attorneys get paid by the grains of sand that fall to the bottom of their little hour glasses, we have been piled with sand on these issues, but if you are going to get upset with reading the words on these screens then don't post!!!
may we all have a more blessed day, tomorrow!!!

PORK

JAMES, PLEASE TELL ME HOW TO DISCONNECT FROM THIS THREAD, OR BETTER YET "DANDY DON" WHAT IS THE TRICK, MY GONG IS NOW SOUNDING LIKE A "COW BELL" AND WE CAN'T BE RINGING THOSE ANYMORE FOR FEAR THE "OLE REB" WILL COME ATTACKING OR IS HE TRULY DEAD?!!!

mwild31

Sorry Pork - it's going to Dong again.

Hi mjuliano - please don't fall into the trap that I too set for myself - taking advice too personally. It took me awhile to get myself out of this mindset & it was kind of difficult along the way. The folks responding to your post are pretty knowledgeable and while sometimes it can come across as maybe flippant or terse - it's usually given based on their years of experience. I look forward to reviewing your posts & hope you continue to use this resource! x:-)

mjuliano

I'm actually not taking anything personally, I just don't have the time to waid through the b.s. to find the actual worthwhile information in an overly sarcastic post. If someone could just calmly state exactly what they believe I am doing wrong, rather than tell me my attorney is a fool, which isn't helpful or productive at all, I would appreciate that.

Don D

I've looked back over all the answers. Your first post indicated that the person's visa is going to expire. Numerous posts have followed which point in the direction of the things that must be done to keep your company legal. It's not a 1,2,3 list of things to do but that's the way these discussions happen. One has to read along and follow or not follow advice and often you get conflicting opinions which is also what the Forum is all about. What you do know is that the person will soon have an expired visa. That makes the person illegal as far as working. The person must get a renewed visa. You must see and record information from a new document. Nobody on an expired visa can continue to work in the US without the renewal process at least being in motion as certified through an attorney of record.

Your lawyer apparently told you not to heed any of this advice and has concluded that all you need to do is make sure the name and number on the documents matche and your issue is solved. I did not tell you until some 30 or so posts later that if that is his advice, he is a fool. That was not sarcasm. That was a statement to you that your company should not retain an attorney who gave that advice in the scenario you have at the moment. He has given you advice that will result in your non-compliance with the law. Follow your attorney's advice. What do we know....we only probably have half a thousand cumulative years doing this.

LFernandes

[font size="1" color="#FF0000"]LAST EDITED ON 10-03-03 AT 12:52PM (CST)[/font][p]Sorry Pork - your gong is going to bong again...

I would get a second attorney's opinion. If this person's visa is about to expire that means 1) (s)he needs to get it renewed to continue working or 2) must leave the country in 3 days. Is this attorney an Immigration Attorney or just a labor law attorney?? I don't think a true Immigration Attorney would tell you just to fill out the form and forget about it.

JUST REMEMBER, if you verify her eligibility NOW, she'll come out authorized to work - it's when the visa expires that it will come back to bite you....in a big way.


Just my thoughts and humble opinion...

LFernandes

Pork

Horay for the gong again, otherwise, I would not have gotten to read your and "Dandy Don"s" post..."Dandy Don" is so good with the words and his quick thinking and so complete in his analysis of the base issues speaks to great wisdom and experience. I believe based on the first post all three of us read it correct and the expiring VISA spoke LOUD SHOUTING WORDS TO ME! I just could not right down what I really wanted to say and all you know my distaste for the ATTORNEY DAWGs>>>

PORK