Immigration Reform Legislation Signed by President Clinton
Spring 1997
After nearly a year of debate and uncertainty, the most recent in a series of immigration reform bills was signed by President Clinton on September 30th. While initial provisions of this bill dealt with both legal and illegal immigration issues, the final piece of legislation dealt almost exclusively with the subject of illegal immigration. This is good news for companies who employ, or are contemplating the employment of, foreign nationals. For now, the new legislation has resulted in little impact on current business-based immigration practices and procedures.
Many U.S. companies, both large and small, employ foreign nationals. The likelihood that your company will employ foreign nationals increases as you enter various high-tech industries, medical research fields, or your operations expand overseas. Once you have identified a foreign national as the individual who can satisfy your company's employment needs, your ability to hire that worker is based on a grant of work authorization from the U.S. government and the underlying legislation passed by Congress. As a result the face of immigration regulations can be drastically changed by the passage of new legislation.
While business immigration was not greatly affected by the most recent reform legislation, the landscape of business immigration is becoming increasingly difficult for employers to navigate. Decreasing availability of immigrant visas and more stringent requirements by various federal agencies have made employing foreign nationals more difficult. This, coupled with the fact that one misstep can cause the foreign worker and the U.S. company significant delays in the commencement of their employment relationship, makes advance planning for the employment of foreign nationals increasingly important.
A U.S. company should consider the following issues when the opportunity to employ a foreign worker presents itself:
- Advance planning is the key to facilitating the overall employment plan of your company. For example, if you know that you will be hiring a number of workers for a specific position and there is a chance that you may be employing foreign nationals, a strategy can be developed to streamline the submission of multiple applications and petitions to the Department of Labor and the Immigration Service. This will enable you to save time in processing petitions with the Immigration Service.
- Plan for the fact that there will be a significant time lag between the time you identify a candidate for employment and the date he or she can actually begin work with your company. It is extremely important that a U.S. company not place an individual on its payroll before receiving express permission from the Immigration Service to do so. This permission will come in the form of an approval notice for the petition filed on behalf of the foreign worker.
- If you are transferring employees to, or from, international offices/branches/affiliates/etc. of your company, you must determine in advance the best route available to facilitate the transfer of your employees. This includes obtaining permission for employees to receive work authorization to begin their new assignments as well as negotiating a benefits package that will satisfy the employees' needs and the company's interests. In most cases, even a "simple" transfer will require employees to present some form of documentation to the necessary immigration officials.
- Remember that it is always easier to address employment issues in advance rather than in a state of crisis. U.S. immigration rules are very unforgiving, and once a foreign worker fails to maintain immigration status, he or she will be required to return to their home country for processing before they can accept employment with a U.S. company. This will result in significant delays and increased costs before the prospective employee can begin employment with the U.S. company.
At this time, U.S. companies have been spared drastic changes in immigration regulations that would directly affect their ability to hire foreign nationals when necessary. However, it is believed that the topic of legal immigration will be revisited by the incoming Congress. Now that illegal immigration has experienced wholesale changes, there is the increased likelihood that future legislation will focus on the topic of legal immigration.