This is the last of a three-part series that provides guidance to new or foreign companies that are entering the U.S. market and seeking to employ either foreign nationals already in the United States on non-working visas, or foreign nationals overseas who wish to enter the United States with a work visa. The discussion is meant to raise important issues, provide best practices, and explain how startups can avoid common pitfalls and meet key deadlines critical to hiring foreign nationals—and maintaining them in legal status. It also includes a brief discussion that aims to help startups remain compliant with the labyrinth of complex immigration rules.
Startups often unknowingly hire foreign nationals in the United States to work for them under the B-1 business visa. This visa is not a temporary work visa and does not allow foreign nationals to work in the United States. Further, certain nationalities are allowed to enter the United States without a formal B-1 visa stamp. This visa waiver program is reserved solely for short-term business trips. It is not to be used to circumvent U.S. immigration work visas.
Startups also often hire foreign nationals without completing the mandatory I-9 employment verification form. All employers in all states must complete and maintain a Form I-9 employment verification form for each employee hired after November 6, 1986, the date the Immigration Reform and Control Act of 1986 was enacted. This applies regardless of the startup’s size. Employers must complete the Form I-9 in a timely manner, usually within three days of hire; have the employee complete and sign the appropriate Form I-9 section (section 1); review the acceptable documents presented by the employee; and complete section 2 of the Form I-9. Employers cannot, in the process of completing the Form I-9 discriminate or retaliate by actions, remarks, threats, over-documenting or requesting specific documents. Employees must be given the list of acceptable documents, found on page nine of the form. As companies grow, it is critical to establish and maintain a formal I-9 policy and conduct regular internal I-9 audits to be compliant and avoid heavy monetary fines resulting from U.S. government audits.
Startups often fail to record the work visa expiration dates, fail to timely commence an extension process, or fail to convert to an immigrant visa far enough in advance. Failure to do timely extensions or processing of an immigrant visa (the “green card”) can lead to gaps of employment between the expiration date of the temporary w. ork visa and the approval of the extension or an effective date of the immigrant visa (the “green card”). Such gaps can lead to employees NOT being able to work for periods of time. Startups should use case management systems to track work visa dates, ensuring compliance and timely extensions. All nonimmigrant visas are valid for only limited periods of time, which vary from one to three years. Extensions should be commenced within four to six months of the expiration date. Determinations to proceed with a green card process should be made within four years of the expiration date of the nonimmigrant work visa.
Startups often lack written immigration policies that include provisions for hiring foreign nationals, an I-9 completion and maintenance policy, and an E-Verify policy. As your company (and workforce) grows, development and implementation of immigration policies and practices will facilitate compliance with applicable U.S. immigration laws and minimize exposure to serious civil and criminal penalties. A single employee can trigger liability for violation of I-9 violations.