Immigration for the Business Owner – Part 2
So, I spent the last installment of this blog talking about the different terms, kinds, and nuances in immigration, at least at a high level. I did that so I could write this blog post – talking about what and why certain things are important to small business owners. So, here we go:
If you or one of your employees has a concern or immigration issue, beware of scams set up specifically to take advantage of immigrants and small businesses. Many people have be victimized by individuals who claim they are “immigration experts.” If you have an immigration concern, seek out a licensed attorney with experience in immigration (by the way, that’s not me. I can spot the issues, but I don’t know that I’d be best person to help you navigate the system). Specifically, be aware that there are very important differences between the legal profession (and the practice of law) in the US versus other countries. For example, a Notario Publico (in Mexico) is not the same as a Notary Public in the US (the TX Secretary of State has a good comparison between the two) – as a consequence, many people have gone to a Notary Public thinking that they can provide services that, in the US, only a lawyer may provide. Additionally, the ABA (American Bar Association) has initiated the Fight Notario Fraud Project specifically to combat this issue.
If you have any concern whether the person you’re talking to is a licensed attorney in NC, look them up at the NC State Bar – Lawyer Directory (if they’re not on it, they’re not a licensed attorney in NC).
By the way, I found this really useful chart on the different types of non-immigrant Visas.
Generally, Student Visas (F Visas) ONLY allow the student in the country to study – not to work. Employing a person in the US on a Student Visa may expose you to liability and certainly exposes them to potential revocation of their visa (and, therefore deportation).
Some Student Visas (F-1 Visas) do allow for an Optional Practical Training period. However, both the student and the work/employment must qualify for OPT Period approval. Be sure that the student you’re hiring is approved to work doing the kind of work you’re hiring them to do.
Work Status Verification
All employers in the US are required to verify the employment status of all employees hired since 1986. This means completing an “I-9” form and keeping those records up to date as necessary. I know some companies which, as a matter of policy, make their employees update their I-9’s every year. It’s not a bad “best practice.”
Also, employers in NC with more than 25 or more employees are required to use E-Verify to verify the employment status of all employees. This requirement was established for NC employers as of July 5, 2013. Additionally, ALL Federal Contractors must participate in E-Verify. But, keep in mind that E-Verify DOES NOT replace the required I-9 Verification Process. E-Verify is an “in addition to” not an “instead of.”
Business Structure and Organization
The immigration status of owners and/or employees can also have an effect on how best to organize the business. For example, some general principles include:
- Non-Resident Aliens may not be shareholders in an S-Corp;
- Companies owned (51% control or more) by American Citizens or Green Card holders cannot sponsor E1/E2 (Treaty Trader/Treaty Investor) Visas;
- If a company sponsoring E1/E2 Visas is acquired by a company which is owned (51% control or more) by American Citizens or Green Card holders, the E1/E2 Visa(s) can be revoked; and
- Companies owned (51% control or more) by American Citizens or Green Card holders cannot sponsor L-1 Visas (Managers assigned US positions by a foreign owned company).
So, be aware of these (and other, more nuanced) limitations as you look at starting or organizing a business where you’re a Visa holder or if you’re looking to sponsor individuals needing work Visas.
If you’re looking to purchase an existing business, be sure to make employment status verification part of your “due diligence” (business opportunity evaluation) process. Otherwise you could cause yourself some significant headaches depending on whether you have employees holding Visas.
- If you’re starting a business and looking to hire Visa holders, Non-Resident Aliens, or other non-US Citizens, be sure you know the requirements for your specific situation.
- If you’re a business owner looking to sponsor Visas for workers, be sure you understand the limitations of your business.
- If you’re ANY KIND of business owner, be sure to make I-9 Employment Status Verification part of your standard procedure.
Immigration is complex and highly technical area of Federal law, if you have concerns or issues, be sure to consult a licensed attorney with experience in immigration law.