Alien Employees

Pages38-41

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An alien employee is any employee working in the United States who is not a citizen of the United States. Those employees who enter the country and secure employment legally do so by first obtaining employment visas. Employment visas are classified into two categories: immigrant visas and nonimmigrant visas. Immigrant visas are used by aliens who are approved for permanent residency in the U.S., while nonimmigrant visas provide for temporary stays in the country of up to seven years.

The subject of alien employees is often complicated by the issue of illegal aliens. Foreigners may enter the U.S. legally, on, for example, a tourist visa, and then seek employment illegally. Or, foreigners may enter the country illegally. Employers must be very careful when hiring to establish that a prospective foreign employee is eligible to work in the U.S.

Immigration law has often been characterized as the second most complicated field of U.S. law, second only to tax law. As a result, it is advisable for any business wishing to employ foreign nationals or alien employees to either develop an in-house expertise in immigration law or consult with an expert in the field. For many businesses, alien employees are of great value, bringing unique talents and knowledge to the business and thereby justifying the additional work involved in hiring them.

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IMMIGRANT AND NONIMMIGRANT VISAS

Immigrant visas are given to aliens who are granted permanent residency in the United States. These individuals tend to be highly educated persons with experience and skills that are in high demand by companies in the United States. Immigrant visas that are most frequently granted are in the following employment areas: business executives and managers; notable professors, researchers, and other academics; advanced degree professionals; professionals with bachelor's degrees; investors in new business ventures; and aliens "of exceptional beauty." Skilled and unskilled workers are also sometimes granted immigrant visas.

Nonimmigrant visas are issued to foreigners whose stay in the U.S. will be temporary, though may extend to a length of seven years. There are 20 nonimmigrant visa classifications, of which only 6 normally allow for work while in the U.S. These nonimmigrant visas are frequently bestowed upon aliens working in the following areas: students engaged in educational pursuits (work authorization is available for practical training after they complete their course of study); registered nurses; temporary agricultural workers; workers in the service sector; trainees; intra-company transfers; artists and entertainers; athletes; and aliens of "distinguished merit" or "extraordinary ability," especially in such fields as the sciences, high technology, education, the arts, business, or athletics.

KEY LEGAL CONSIDERATIONS PERTAINING TO ALIEN EMPLOYEES

The regulatory picture for employing alien workers is an ever-changing one in the United States. The 1990s was a period of economic growth and saw U.S. corporations turn strongly to alien employees to fill...

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