Teachers College
Columbia University

Hiring and Paying Foreign Nationals

Teachers College often hires foreign nationals -- individuals who are neither U.S. citizens nor permanent residents -- to work at TC, either as employees or as independent contractors.  Hiring foreign nationals is critical to our work and the College’s international focus.  It is, however, governed by strict and often confusing immigration and tax regulations.  This guidance is intended to help those who seek to hire foreign nationals.  Please contact those identified below with any additional questions.

Definitions


•    Citizen.  A citizen, by birth or naturalization, of the United States.
•    Permanent resident or “green card” holder.  A non-citizen authorized to work in the U.S.  Indefinitely.  (“Green cards” are now pink.)
•    Foreign national.  Anyone who is neither a US citizen nor a permanent resident.
•    Employee.  Most individuals who provide services to Teachers College. 
•    Independent contractor.  A self-employed individual who provides services to TC. 
•    Resident alien.  An IRS category for non-citizens who must pay taxes as citizens.
•    Non-resident alien.  An IRS category of individuals, including most foreign nationals, who are subject to special tax rules not applicable to citizens or resident aliens. 


Basic Rules


Authorization to Work 
No one may work at or be paid by TC without demonstrating the legal right to work here.  TC must verify the employment authorization and identity of all new employees – citizens, permanent residents, and foreign nationals.  See section 1, below.  No foreign national may work for or be paid by TC until he or she has completed and provided TC with all necessary immigration and tax forms.  Federal processing of those forms is sometimes time-consuming, so arrangements should be made 5 to 6 months  in advance.  For example, obtaining prevailing wage rates from the US Department of Labor takes at least 60 days; USCIS processing/approval of  an H-1B visa/status typically requires two to four  months and even more costly expedited handling by USCIS can take two to six weeks.   Hiring or paying an individual who is not authorized to work here exposes TC and sometimes individuals involved in the hiring process to potential liability. 


Employee vs.  Independent Contactor
Federal law also requires that all workers be treated as employees unless (a) they qualify as students or scholars with specified immigration status and work only to the extent that status permits or (b) they qualify as independent contractors under the IRS’s strict test for independent contractor status.  An individual cannot be classified as an independent contractor based on convenience, the source of funding, or the number of hours worked.  Inaccurate classification of individuals as independent contractors is illegal and also risks liability.


Taxes
Complex tax-withholding requirements apply to most foreign nationals (“non-resident aliens” for tax purposes).  As a general rule, TC must withhold 30% federal taxes from payments made to any such employee or independent contractor unless that individual demonstrates (through use of the IRS form 8233) the applicability of a more favorable tax treaty between his or her home country and the US. 

“Volunteers.”    
It is not lawful to hire foreign nationals as volunteers or unpaid interns or trainees in an effort to avoid immigration and tax regulations.   Indeed, there are only limited circumstances in which even citizens and permanent residents may be permitted to work as “volunteers” at Teachers College.  Please contact Human Resources with any questions about any proposal to accept volunteers or other unpaid workers. 


Where to go for help 
This memorandum is intended to help those seeking to hire foreign nationals by directing them to the office that can most efficiently guide them through the hiring process.  There may be special situations in which you will need to be referred to a different office, but the individuals identified below can recognize such situations and send you to the appropriate office.


1.    If you are hiring a US citizen or a permanent resident (green card holder) as a faculty or staff member, Human Resources is responsible for processing employment papers and can answer your questions.  Please contact your HR representative or the HR office at x3175 or www.tc.edu/hr with any questions about employment eligibility.


TC must verify the employment authorization and identity of all new employees (even citizens).  Current law requires completion of a “Form I-9” within three business days of an employee’s first day of work.  Failure to meet this deadline may result in significant fines, which are the responsibility of the hiring office. Part-time or temporary employees are not exempt from this requirement; employees who are hired to work for less than three business days must complete and submit Form I-9 before or on their first day of work.  Completing a Form I-9 requires, among other things, that the prospective employee provide original documentation of identification and citizenship or immigration status (in forms authorized by the U.S. Citizenship and Immigration Service) to the HR Office.  For more information, see www.tc.edu/i/a/document/9829_040809NEWI9.pdf.

2.    If you want to hire an individual who is not yet eligible to work at TC as a faculty member or full time instructional or professional employee, Viktoria Potapova of the Office of General Counsel can help you evaluate the options and answer your questions.  Please contact her at Potapova@tc.edu or x6637 for more information on the employment visa sponsorship process. 

Scholars and other individuals with specialized skills may be eligible for H-IB or other visas that permit them to work in the United States for limited periods of time.  The process of obtaining an H-1B can be long and uncertain, so you should begin the process at least five months in advance and longer when possible.   (Expedited processing is available for an additional fee; that process can take as little as two weeks, but can require two months.)   For more information, see www.tc.edu/international/H-1.  Permanent residency (a “green card”) may be an option for full-time faculty and, rarely, some full-time professional staff, but because it is extremely time-consuming and expensive, TC generally seeks an H1-B visa first.   See “Petitions for US Permanent Residency” in the attached appendix.   Please note that these procedures do not supersede standard recruitment processes; the College provides immigration assistance only after the appropriate faculty or staff recruitment procedures have been followed.  

[1] Canadian, Mexican and Australian nationals may be eligible for TN visas (Canada, Mexico) or E visas (Australian) based on offer letters.   Such visas are issued based on offer letters and do not require TC to file a petition.   Individuals arriving at TC with TN or E visas should contact HR immediately.

[2] Expedited processing applies to USCIS (it does not include TC or Department of Labor processing time).

3.    If the individual will be coming to TC as a student and any employment will be secondary to student status, the Office of International Student Services (OISS) can assist you.  Please refer the student to OISS, www.tc.edu/international.  You may also contact OISS at x3939 or tcintl@tc.columbia.edu with questions about employment restrictions.

International students generally arrive at TC on F-1 or J-1 visas, although there are some permissible exceptions.  OISS guides prospective students through the process to ensure that they have appropriate visas.  The applicable laws limit the work that F-1 and J-1 students can do as employees or independent contractors.  OISS offers employment workshops throughout the term, and TC strongly recommends that all international students attend at least one session.  All employment of international students must be approved through OISS before work may begin.  For more information, see www.tc.edu/international/F-1Employment or www.tc.edu/international/J-1Employment.


4.    If you wish to host an international colleague with a doctoral or equivalent degree to do his or her own scholarly work at TC but you will not be hiring that person as an employee or an independent contractor, your visitor may be eligible for Visiting Scholar status.  Please contact the Office of International Student Services , x3939or slu@tc.columbia.edu

To accommodate the needs of international colleagues and recognize their contribution to the intellectual life of TC, Visiting Scholar status may be conferred on behalf of the Provost and Dean of the College by the Director of the Office of International Student Services to the extent consistent with TC policy.  If the individual will need TC visa sponsorship, please contact the Office of International Student Services to process the J1 visa documents after your visitor has been granted VS status by the College.  For more information, see www.tc.edu/international/VisitingScholars.

5.    If you wish to invite an international scholar for a brief visit to give a lecture or participate in a symposium, your visitor may be eligible for an honorarium and associated travel expenses.  Please see  www.tc.edu/i/a/document/15414_International-Addendum.doc and  contact the Office of General Counsel, x6637 or Potapova@tc.edu if you need more information.

Individuals traveling on B-1/B-2 visas or visa waivers may be paid honoraria and associated travel expenses for traditional academic work (such as giving lectures or participating in symposia) if they meet certain requirements.  Among other requirements, they must work at TC for no more than 9 days and must not have been paid more than five times during the prior six months for similar work in the U.S.  A form for use in such situations can be found at www.tc.edu/i/a/document/15414_International-Addendum.doc . The College is legally obligated to withhold taxes when making payment of honoraria (but not travel expenses) to foreign residents unless they provide an IRS form 8233 establishing the right to more favorable treatment.  Visitors who do not have a social security number (SSN) or a U.S. tax identification number (TIN) should be encouraged to apply for SSN or obtain a TIN before visiting so they can complete the 8233 and avoid taxation.  See Taxes, below.

6.    If you wish to hire anyone else to do work at TC, TC must treat that person as an employee unless the circumstances of the individual’s work meet the IRS test for independent contractors. 

HR processes employment documents.  For more information, contact your HR representative or the HR office at x3175 or www.tc.edu/hr.  If you are not certain whether a potential employee has the proper immigration status for that employment, please check with OISS at x3939 or tcintl@tc.columbia.edu.

Foreign independent contractors (consultants), like employees, may not work in the U.S. unless they have visas or work authorizations permitting such work.  If you wish to treat a foreign national as an independent contractor, please submit a completed Request for Independent Contractor (RICA) form to the Office of General Counsel at least three weeks before the individual is to arrive at TC.  The RICA form must be accompanied by an appropriate Visa and should also include completed IRS Form 8233. (see “Taxes” below)   Additional lead time is necessary to ensure that we can comply with all immigration regulations. 

Taxes and Why they Matter to TC as well as to Foreign Nationals

U.S.  tax laws are complex even for citizens and permanent residents.  They are more complex for “non-resident aliens,” an IRS category that includes most international students and scholars.  Non-resident aliens must comply with different tax rules and file different tax forms than U.S. citizens and permanent residents.  Foreign nationals in the TC Community will find useful information at www.tc.edu/admin/International/index.asp and at http://www.columbia.edu/cu/isso/tax.

Absent proof of resident alien status, TC is required to assume that foreign nationals are non-resident aliens.  Most such employees are covered by favorable tax treaties, but tax laws require TC to withhold 30% of compensation for federal taxes unless the individual has, by filing a properly completed Form 8233, demonstrated the applicability of a more favorable tax treaty.  Non-resident aliens who wish to work for or be paid by TC must submit IRS form 8233( www.irs.gov/pub/irs-pdf/f8233.pdf) along with evidence of immigration status to permit TC to determine whether they can be hired and paid and, if so, what taxes must be withheld.  Form 8233 instructions are at  www.irs.gov/instructions/i8233/ch02.html.   In order to complete a Form 8233, the foreign national must have a social security number (SSN), a copy of an application for an SSN or a tax identification number (TIN).   A TIN can be obtained by filing IRS form W-7(www.irs.gov/pub/irs-pdf/fw7.pdf).   Instructions are at www.irs.gov/pub/irs-pdf/iw7.pdf.  

Employees should submit the form 8233 to the Office of Human Resources.  John Zeldin, Zeldin@tc.edu can answer questions.    For independent contractors and those to be paid honoraria, please submit the Form 8233 along with either a RICA form or the International Honoraria form to the Office of General Counsel.   In the absence of a valid Form 8233, TC must withhold taxes from any compensation or honoraria to be paid to the foreign national.

Last updated:   September 9, 2011


Tagged: