Hiring Immigrant Workers

As you strive to expand your workforce and tap into a broader talent pool, you may consider employing immigrant workers. When hiring immigrant workers, there's a lot to think about.

This article explores the ins and outs of hiring immigrant workers for full-time positions and what you need to know.

Verifying an Employee's Employment Eligibility

When hiring prospective employees, you must verify they are eligible to work in the United States. To do so, you must file an Employment Eligibility Verification form (Form I-9) within three days of hiring the employee.

The I-9 form provides the procedure for verifying an employee's eligibility to work. These include providing a Social Security number or other documents required for verification.

Employment-Based Immigration

There are several ways to immigrate to the United States from foreign countries. For those who wish to immigrate to work in the U.S., there is the option of applying for and obtaining an employment visa.

There are employment-based nonimmigrant visas and immigrant visas. The key difference between these employment visas is their purpose. The first is for those seeking temporary work authorization in the United States. In contrast, the second is for immigrant workers aiming to work and stay in the U.S. permanently.

The U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor (DOL) provide helpful information about employment-based immigration.

Immigrant Visas

If you have found an immigrant worker you would like to sponsor for a green card (permanent resident status), there are specific steps you must take. It's important to know that sponsoring an employee for a green card can be difficult. The waiting period for a green card can take several years, depending on the employee's country of origin.

In most cases, you must show that no U.S. citizens are available for the position. You must go through the PERM Labor Certification process to show this. This process generally requires you to:

• Advertise the job
• Interview candidates
• Show that those candidates are suitable for the job

Once the employee receives their green card, they are eligible to stay in the U.S. and free to work anywhere they wish.

Understanding Visa Categories

Before hiring immigrant workers, it's crucial to understand the various visa types available. Each visa category has its requirements, restrictions, and benefits. Some common visa types relevant to small-business owners include:

• H-1B Visa: This visa is for highly skilled workers in specialty occupations. You must show that the position requires specialized knowledge and at least a bachelor's degree. You must also show that the foreign worker possesses the necessary qualifications.
• L-1 Visa: This visa allows multinational companies to transfer employees from foreign offices to their U.S. locations. There are two subcategories: 
  • L-1A for managers and executives
  • L-1B for foreign employees with specialized knowledge
• E-2 Visa: Entrepreneurs from countries with investment treaties with the U.S. can invest substantially in a U.S. business and qualify for this visa. It is a good option for starting or purchasing a business.
• O-1 Visa: This visa is for individuals with extraordinary ability or achievement in their field. The O-1 visa suits those who have garnered recognition or awards for their work.
• TN Visa: Under the NAFTA agreement, citizens of Canada and Mexico can work in specific professional fields in the U.S. using the TN visa.
• R-1 and EB-4 Visas: These visas are for foreign workers who are members of religious denominations. It's important to note that the R-1 and EB-4 visas have specific eligibility criteria and application processes. Sponsors for religious workers should ensure they meet all the requirements. This includes providing the necessary documentation to support the application.

Visas vs. Work Permits

Visas and work permits serve different purposes for foreign nationals seeking work in the United States. A visa is an official document that allows an individual to enter the country for a specific purpose, such as tourism, study, or work. While certain types of visas, like H-1B or L-1 visas, grant permission to work, they do not provide direct authorization to work in the U.S.

An Employment Authorization Document (EAD) is a document that grants noncitizens the right to work in the U.S. for a specified period. This is commonly referred to as a work permit or nonimmigrant work visa. A work permit allows a visa holder to engage in employment activities. Temporary visas that grant temporary worker status need the sponsorship of an employer.

Legal Obligations and Compliance

Small-business owners must adhere to various immigration laws when hiring immigrant workers. These include:

• Form I-9: U.S. employers must complete Form I-9 for all new hires. This verifies their identity and eligibility to work in the United States. The main classifications of legal workers are:
  • U.S. citizens
  • Noncitizen nationals
  • Lawful permanent residents
  • Visa holders
• Nondiscrimination: It's crucial to treat all workers, including noncitizen employees, fairly. This includes following anti-discrimination laws, both local and federal.
• Labor Condition Application (LCA): For H-1B visas, employers must file an LCA with the DOL. This ensures that the employment of foreign workers will not negatively impact U.S. workers' wages or working conditions.
• Foreign Labor Certifications: Employers for H-2A and H-2B visas must undergo the foreign labor certification process. This involves filing the necessary forms with the DOL and demonstrating a labor shortage.
• Immigrant Petition for Alien Workers (Form I-140): Once the DOL certificate is received, employers must file the Form I-140 with USCIS. This form requires you to identify which employment category the worker falls under.
• Payment of Wages: Immigrant workers must earn at least the prevailing wage for their occupation and location.

It's important to note that the visa application process can be complex and time-consuming. You should work closely with immigration attorneys who specialize in employment-based immigration. Immigration attorneys can ensure you meet all requirements and help the process go smoothly. Visa processing times and requirements can change. Staying updated on the latest information from USCIS and the U.S. Department of State is essential.

Getting Legal Help

If you have any concerns about hiring a foreign worker, contact an immigration attorney. For more general questions about your hiring policies and practices, contact a local employment law attorney.

For more information and resources, visit FindLaw's section on Immigration Law for Employers.