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Ask the HR Expert: Immigration Law

Posted by NEHRA  August 6, 2010 09:00 AM

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Q. A large corporation in MA has an employee from another country with a work visa. The employee is requesting an FMLA leave which complies with one of the FMLA standards. The FMLA usually allows either full leave of 12 weeks or partial leave from work. Does this same standard apply to working legal immigrants for partial leave (or full leave), or will that impact their working visa status?

A. The H-1B visa regulations issued by the DOL address the impact of an FMLA leave on the employee with an H-1B visa. An employee on an authorized leave will maintain status. The employer should document the leave in the employee’s H-1B Public Inspection File. This same principle applies to E-3 visas which are also governed by the same DOL regulations. While leaves of absence are not addressed in the regulations for other types of work visas, common sense dictates that if the employee is on an authorized leave of absence from the company, with an expectation of returning to work after the leave ends, then the person is maintaining his or her status. Again, it is incumbent on the employer to document this to USCIS should the need arise.

SUSAN COHEN

Q. I'm holding a TN visa and my wife has a TD visa. In the case of job termination, I understand that have to leave the country within 10 days after the last day of employment. However, what about my wife? Does she also have to leave within 10 days as well, or does her VISA status make her a different case?

A. A spouse in TD status only maintains status as long as the principal visa holder, in this case someone holding TN status. There is no formal 10-day grace period in the law for persons in TN or TD status and therefore once employment ends, the individuals are supposed to quickly wrap up their affairs and leave the country, or, while still in valid TN /TD status, file an application to change their status to another nonimmigrant visa status. A 10-day period is generally accepted as a reasonable period of time to wrap up one’s affairs, even though this is not formalized in any regulations.

SUSAN COHEN



Q. Under a G-4 visa, able my legally able/allowed to engage in a short term consulting assignment abroad for another organization and be compensated for it?

A. Your G-4 visa status allows for work in the U.S. only for an international organization (like the UN). U.S. Immigration law does not apply to working in another country. It only applies to work performed in the U.S. So there is no immigration issue unless the other country has its own visa rules. However, I would expect that your current employment agreement should be consulted since the terms of your employment might preclude working for another entity.

CAROLYN FUCHS

Q. We have consultants visiting the U.S. on B-1 status (in lieu of an H1 visa) from our foreign offices. Are there any minimum wage requirements to be met for their payroll?

A. The B-1 in lieu of H-1B status is usually given only in limited circumstances. The foreign national employee must not receive any salary or the other remuneration from the U.S. source other than an expense allowance or other reimbursement for expenses incidental to the B-1’s temporary stay. The Department of State finds that it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad.

In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad.

Other than these requirements, there are no wage requirements that need to be met, as is the case with an H-1B visa.

CAROLYN FUCHS

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).
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