Document & Visa Guidelines for Foreign Employees
University departments should have a good understanding of immigration regulations prior to employing a non-U.S. citizen for several reasons:
- All U.S. employers must comply with the Immigration Reform and Control Act (IRCA) of 1986. This act requires employers to verify the employment eligibility and identity of all employees hired to work in the United States. Employers are required to document this eligibility on Form I-9, Employment Eligibility Verification. In order to complete this form properly, employers must be knowledgeable about immigration rules and documents. See the related article regarding the I-9 Form for more information.
- Immigration laws restrict the types of payments that can be made legally to a non-U.S. citizen.
- The visa status of the individual directly impacts tax withholding requirements.
The United States Citizenship and Immigration Services (USCIS) is responsible for managing immigration and naturalization and establishing immigration services policies. This organization is also responsible for ensuring that employers adhere to immigration regulations when employing or making payments to non-U.S. citizens.
The following visa status and document guidelines are designed to assist departments in successfully employing a foreign national in a faculty or staff position.
- Be familiar with the relation between Visa Statuses and Employment Eligibility. Before hiring a non-citizen, know which visa statuses allow employment and which statuses do not. USCIS has established categories of employment eligibility.
- Permanent, Unrestricted Employment: Employment is authorized without restriction as to location or type of employment as a condition of the individual's specific immigration status. Employment under this category is available to U.S. citizens, U.S. permanent residents, asylees and refugees.
- Temporary, Unrestricted Employment: Individuals in this category must apply to the USCIS for employment authorization. If approved, the USCIS will issue an Employment Authorization Document (EAD) valid for a specific period of time. Common categories of EAD holders include non-citizens awaiting adjustment of status, fiancés in K-1 status, F-1 students on optional practical training and individuals granted Temporary Protected Status (TPS).
- Temporary, Restricted Employment (employer-specific): Individuals in this category can be employed only by a specific employer and are subject to the restrictions indicated as a condition of their admission or immigration status by the USCIS. These individuals usually have an F-1, J-1, H-1, O-1, P-1, or TN visa status.
- Not Eligible For Employment: Individuals with certain statuses cannot be employed by a U.S. employer. This category includes non-citizens who entered and remain in the United States unofficially, foreign visitors on B-1, B-2, WB, or WT status, most dependents with visa types such as H4, or TD, and dependents of students having F-2 or M-2 status.
- Be familiar with the types of Immigration Documents.
- Passport I-94 Arrival/Departure Record: This form is issued to foreign visitors upon entry to the United States. It is evidence of an individual's lawful admission to the United States within a specific immigration status.
- I-20 Form Certificate of Eligibility for Non-Immigrant Students: This form is issued to students who have been admitted to a degree program at a college or university. The visa status that one would expect from an individual with an I-20 Form is an F-1.
- I-797 Notice of Action Form
- EAD - Employment Authorization Document