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Ask the HR Expert: Immigration Law

Posted by NEHRA  January 31, 2011 09:00 AM

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Q. Can an employee on B-1 VISA legally be laid off in U.S.? What are the governing rules in this regard?

A. It is not proper for any U.S. employer to employ anyone in B-1 visa status; accordingly since employment in B-1 status is not allowed, it should never be necessary for a U.S. employer to “lay off” anyone on a B-1 visa. Under limited circumstances a FOREIGN company may have an employee working in the U.S. in “B-1 in lieu of H-1B” status. If the foreign employer wishes to terminate the employment of an employee who is presently in the U.S. in B-1 in lieu of H-1B status, then the foreign company should follow the employment law requirements applicable in the company’s home country. A person in “B-1 in lieu of H-1B” status whose employment abroad is terminated, is no longer entitled to remain in the U.S. as their status is tied to their employment by the foreign employer.

SUSAN COHEN

Q. I am a G4 visa holder working for an international bank. I heard that the spouse of a G4 principal is eligible to apply for a Green Card under Special Immigration criteria, even if the G4 employee has not retired from their international organization. Can you please provide me with additional information/links to a definitive answer to this question?

A. Under Section 101(a)(27)(I) of the Immigration and Nationality Act, the widow of a deceased former G-4 visa holder may apply for permanent residence status as a Special Immigrant, if certain criteria are met. Additionally, the spouse of a retired G-4 visa holder may apply for permanent residence status if the retired G-4 visa holder meets the criteria for applying for Special Immigrant status – in this situation the spouse may apply along with the retired G-4 visa holder. There is no provision for a G-4 spouse to apply for a Special Immigrant visa while the other spouse is still employed, and not yet retired. (INA 101(a)(27)(I) does however include a provision for unmarried sons and daughters of G-4 employees, even if the G-4 parent is still employed, and not yet retired.

SUSAN COHEN


Q. Can a small company in the U.S. legally hire an employee in a foreign country, if this employee will work from his/her home country? My question is specific to any U.S. laws that will prevent or allow me to hire.

A. U.S. immigration law only applies to employment in the U.S. So if the employee never comes to the U.S., then immigration is not involved. If the employee spends time in the U.S. then they may need either a business visitor visa or work permit depending on what they are doing here. A business visitor is a visa for an employee who comes here for meetings, instructions but does not perform actual “work” while here. The work permit would be for someone who is doing what a U.S. employee would do. It’s hard to comment on which would be required without more specific facts.

CAROLYN FUCHS

Q. We have a candidate for a position at our company who is from Korea he just graduated from college. He is currently working on obtaining his OPT, but already has social security #. While he is waiting on approval for his OPT, can we hire him as an employee or do we need to wait for his OPT to be obtained?

A. A foreign student needs actual work authorization to work and will have to wait until s/he receives the EAD card. A social security card in these circumstances doesn’t prove someone is authorized to work since the student needs the authorization from USCIS first.

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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