Hiring across borders

Businesses willing to make the investment to tap non-citizen immigrants for fresh talent

Story by Kurt Rentmeester

As foreign investments and acquisitions continue to gain a foothold in American corporate culture, thousands of immigrants have been entering the United States to offer specialized skills as attorneys, engineers, financial managers and an array of other occupations.

“All these people are here to enhance or improve the investments people make in the United States. These are the cream of the crop of the global marketplace. These aren’t unskilled people working in farm labor,” said Christopher Braun, director of international estate and trust planning for Virchow, Krause & Co.

In the face of heightened awareness and concern about the potential for terrorist threats, a variety of relatively new federal and state measures have been added to identify the potential for such situations in the United States.

The burden is on employers to comply with these new regulations. And employers are being scrutinized to a greater degree than ever before. In turn, prospective employees must possess the proper credentials.

Importing talent
Many immigrants come to the United States because the international movement of goods and labor has become easier as technology continues to grow, said Geoffrey Lacy, a labor and employment attorney who specializes in immigration issues with Davis & Kuelthau, s.c. The Internet enables people overseas to apply for U.S. jobs with the same relative ease as anyone domestically, for example.

In the early 1990s, the number of immigrants entering the United States began to increase when the technology boom arrived, Lacy said. Businesses took on new employment verification and document retention requirements.

In the last decade, Lacy said he’s observed a growing demand for people with specific skills. In many instances, U.S. students have not been obtaining those specific technical skills fast enough to meet workforce demands, said Lacy, who previously served as an immigration caseworker for U.S. Sen. Herb Kohl.

“To not fill positions in a booming economy isn’t workable,” Lacy said. “So we seek out highly skilled individuals from foreign countries.”

The Immigrant Reform & Control Act of 1986 requires employers to verify employment authorization. Foreign workers must have a work permit and legal immigrant status. Transferees can work with an attorney to obtain the correct permit, said Braun, who handles tax planning for executives coming to the U.S. from other countries.

Yet, he finds some foreign company officials believe their people can enter the United States without a work permit.

“It’s a fundamental issue that most people don’t know about. The first step is to make these folks legal,” Braun said. “All these people are documented and they have their paperwork in order before they get here.”

Immigrants come to the U.S. to work in a wide range of occupations. About half of the immigrants Braun works with are financial managers who may be here to manage a bridge being built or to manage a foreign company’s investment in Wisconsin.

mmigrant employees typically spend three to five years in the U.S. on average before deciding to go home. But an estimated 35 to 40 percent of them get their green cards to remain in the United States, Braun said.

They often are the elite - the doctors, scientists and IT specialists that foreign companies do not want to lose, he said. They must have a valid work permit and legal immigrant status.

Businesses are willing to invest money to bring those employees in to the country. Braun worked with a consumer products company that brings in 15 immigrant employees annually. Employers can spend as much as $10,000 per person in combined legal and accounting fees.

“It’s a significant cost,” Braun said. “There are some employers that will bring 100 people here. But they understand they can’t bring people here who aren’t fully documented (even if) they’re providing valuable services to their employers.”

Papers in order
Besides making sure non-U.S. citizen employees have a work permit and valid legal status, Braun said they also have to properly pay Social Security and federal and state income taxes.

 “That’s not as easy as it sounds. They may still be a French resident. They may have to file two returns,” Braun said.

Patrick Coffey, an attorney who specializes in employment law with Menn Law Firm in Appleton, said some employers aren’t aware of how important it is to protect themselves against issues involving employees, particularly with immigrants. The bulk of his work involves litigation after a labor complaint has been filed.

Immigrant employees must also fill out the federal I-9 form, but must include with it proper immigration documentation that contains their information, Coffey said. Businesses can’t always take a worker’s word on the information they provide. Without proper documentation, employers could face a fine and a review of all employee records.

Liabilities for businesses that hire and employ unauthorized or illegal aliens can range form minor fines to criminal sanctions, said Tony Renning, also a labor and employment law attorney with Davis & Kuelthau.

“It’s really a range of penalties,” Renning said. “If you have completed an inaccurate I-9, you might get slapped on the wrist by the U.S. Department of Labor. But if they’ve noticed it again and it becomes a repeated practice, the penalties are going to be more severe.”

New wrongful employment penalties went into effect in September for companies who illegally hire aliens without adequate authorization. Those rules were issued by Immigration Customs and Enforcement, a division of the U.S. Department of Homeland Security.

Companies that knowingly employ persons with no authorization in the U.S. can be fined as much as $10,000 per person, Braun said.

If an employer receives notice that the name of an employee doesn’t match a federal Social Security number, the company must correct the employee’s information and obtain Social Security Administration verification that the person can work here. If the employer fails to respond, they could be charged with knowingly employing an illegal alien without proper authorization.

An employer usually has 90 days to correct a situation, or else they must terminate the employee. Sometimes, Braun has found, 90 days isn’t always enough time.

Company officials that have constructive knowledge - even if they don’t have prior knowledge - of an employee’s illegal status, can be subject to a five-year prison term, as well as financial penalties, according to Braun.

More rules to come?
The U.S. Senate is considering a bill that would sharply increase requirements for employment verification by employers. It would also dramatically increase the fines and penalties for failing to follow the process correctly, as well as increase funding for work site enforcement.

“All of this is intended to ensure that employers are responsible in regard to who they’re hiring,” Renning said. “It’s not a deterrent to hiring foreign nationals, but to protect the workforce and to ensure those individuals who are working here are legally supposed to be here.”

Braun said he often finds himself educating businesses that may be bringing employees to the United States for the first time.

“We have to spend a lot of time talking them through this stuff. Employers want to be fully compliant,” Braun said. “They may be ignorant about the rules. But there’s a very real commitment to make sure these people are fully documented and are paying all their taxes.”

Kurt Rentmeester is a freelance writer based in Kewaunee County who has been previously employed by daily newspapers in Manitowoc and Sheboygan.