Hiring Immigrant Workers FAQs

For many business owners, hiring employees is more than just posting job openings and looking for the right candidate. With a global workforce common across many industries, you may find your ideal candidate is a foreign national. When hiring immigrant employees, the process involves more steps. Understanding the legal obligations involved is essential. You must be legally compliant when hiring immigrant workers. You should also know your rights as an employer and the rights of the immigrant employee.

This page provides a comprehensive overview of the frequently asked questions about hiring an immigrant worker.

• What is the process of hiring a foreign employee to work in the United States?
• Can a small business sponsor a foreign national to work?
• What is a foreign labor certificate?
• What are the different visa categories for foreign employees?
• Can foreign workers become lawful permanent residents?
• Can I hire foreign workers on a temporary or seasonal basis?
• Does everyone you hire need to prove they are legally eligible to work in the U.S.?
• How can U.S. employers check employees' eligibility to work in the U.S.?
• What are the consequences for an employer who correctly completes an I-9 form for an employee but U.S. Immigration and Customs Enforcement (ICE) discovers that the employee is not eligible to work in the U.S.?
• Can an employee with an employment visa apply for an adjustment of immigration status?
• Hire a lawyer

What Is the Process of Hiring a Foreign Employee to Work in the United States?

A U.S. employer interested in hiring an immigrant worker should first get a labor certification from the Department of Labor. Through this process, the U.S. employer must prove that there are no workers in the U.S. who are able and willing to take the job for which the foreign employee is being recruited. After getting a labor certificate, the employer can file for an Immigrant Petition for Alien Worker (Form I-140) with the U.S. Citizenship and Immigration Services (USCIS).

Not all foreign employees must undergo the PERM labor certification process. For example, employees applying for jobs under the extraordinary ability classification may be exempt. Intra-company transferees are also exempted from filing for PERM labor certification.

Can a Small Business Sponsor a Foreign National to Work in the United States?

Yes. A small business owner may sponsor a green card for foreign employees. There are several steps to this process:

1. The small business owner should submit a PERM prevailing wage determination. This ensures that the U.S. employer pays its employees the minimum wage for that particular position.
2. The U.S. employer also needs to advertise the job. This will prove to Department of Labor officials that no U.S. workers were available and willing to take the job, necessitating bringing a foreign employee to the United States. The U.S. employer must post the job on at least three different platforms.
3. If no workers in the U.S. applied for that position after the recruitment period, the U.S. employer must proceed to file an Application for Permanent Employment Certification (ETA 9089 form). Note that there are certain instances where PERM labor certification is not needed. The labor certification is exempted when the employer requests a National Interest Waiver about the job offer.
4. After a few months, the U.S. employer will get a notice of approval or denial of application.

What Is a Foreign Labor Certificate?

Foreign labor certification is an employment authorization document that allows U.S. employers to hire noncitizens to work temporarily or permanently in the United States. The program ensures that hiring foreign employees will not adversely affect U.S. citizens or domestic workers' job opportunities, working conditions, and wages.

What Are the Different Visa Categories for Foreign Employees?

Employment-based visas have several categories. They range from EB-1 visas to EB-5 visas:

Visa type description

• EB-1 visas are for priority workers. Qualifying foreign workers with extraordinary ability in sciences, arts, athletics, education, or business falls under this category. This category includes outstanding researchers, professors, and certain multinational executives and managers.
• EB-2 For foreign workers who are professionals with advanced degrees and have exceptional abilities.
• EB-3 Available to skilled workers, professionals, and other workers
• EB-4 This is available for special immigrants. Special immigrants include religious workers, U.S. armed forces members, certain broadcasters, special immigrant juveniles, officers or employees of NATO-6 or G-4 international organizations, and their family members.
• EB-5 Immigrant investors visa. This visa is available for investors, their spouses, and unmarried children under 21.

Can Foreign Workers Become Lawful Permanent Residents in the United States?

U.S. immigration laws give foreign workers various ways to get permanent resident status through employment-based immigrant visas. The ability to get an LPR status or green card may depend on the preference categories discussed above. First preference goes to EB-1 visa holders, second preference goes to EB-2 visa holders, and third preference for EB-3 visa holders.

Can I Hire Foreign Workers on a Temporary or Seasonal Basis?

Yes. The U.S. government has H-2A and H-2B labor certification programs. With these certifications, foreign workers can temporarily fill jobs necessary to the U.S. economy.

Visa type description

• H-2A temporary agricultural workers. U.S. agricultural employers anticipating a shortage of employees may get H-2A labor certificates. The certificate allows noncitizens to perform agricultural labor in the U.S. for a temporary or seasonal nature.
• H-2B nonagricultural temporary workers. This visa category allows U.S. employers to hire nonimmigrant employees to come to the United States to work temporarily in nonagricultural fields. This work can either be seasonal, one-time, peak load, or on an intermittent basis.

Does Everyone You Hire Need to Prove They Are Legally Eligible to Work in the U.S.?

Yes. Employers must verify that every employee they hire is legally eligible to work in the United States. This is done by completing an Employment Eligibility Verification form (Form I-9) for each employee at the start of employment.

Form I-9 allows the U.S. employer to verify hired individuals' employment authorization and identity. All employers in the U.S. should complete a Form I-9 for every person they hire in the United States. This applies whether they are hiring a U.S. citizen or noncitizen. Note that employers and employees should fill out the form.

In the form, the employee should attest their authorization to work in the United States. The employee should also present an identification document that shows proof of their identity and employment authorization. The U.S. employer should then check the authenticity of these documents.

How Can U.S. Employers Check Employees' Eligibility to Work in the United States?

The U.S. government has a system called E-verify. It is an online database where a U.S. employer can check the employee's eligibility to work in the country. The system compares the employee's records under their Form I-9 to those of the employee with the U.S. Department of Homeland Security (DHS) and the Social Security Administration.

What are the consequences for an employer who correctly completes an I-9 form for an employee but U.S. Immigration and Customs Enforcement (ICE) discovers that the employee is not eligible to work in the U.S.?

An employer must file an I-9 form and verify that the document(s) presented by the employee are valid and authentic. If the employer does so, he or she will not get charged with a verification violation. For the federal government to impose sanctions on the employer for hiring an unauthorized worker, it must prove that the employer knew that the worker was ineligible to work in the U.S.

Remember that an employer can't knowingly continue to employ a person ICE has determined is not legally authorized to work in the U.S.

Can an Employee With an Employment Visa Apply for an Adjustment of Immigration Status?

Yes. An employee with EB-1, EB-2, and EB-3 visas are eligible to apply for LPR or green card if they are in the United States and if they meet the following requirements:

• The employee correctly applied to register permanent residence or adjust status (Form I-485).
• The employee was admitted or inspected and paroled in the United States.
• The employee was physically present in the country when Form I-485 was filed.
• The employee is eligible for an immigrant visa.
• The job offered in the previous petition is still available with the U.S. employer who filed the previous Form I-140 petition on behalf of the employee. The employee also plans to accept the job offer once the USCIS approves the Form I-485 petition. Or if the employee filed Form I-140 as a self-petitioner, the employee should work in the same field as stated in the Form I-140.
• An immigrant visa or green card is available to the employee when filing Form I-485 and when the USCIS makes a final decision.

Seek Legal Advice From an Immigration Attorney

Employment-based immigration has an intricate application process that involves various U.S. government agencies. Because of this, you must know different rules and regulations.

An immigration attorney helps understand this intricate employment-based immigration process. They can guide you through the various aspects of hiring an immigrant worker. They can give you legal advice tailored to your employee's visa classification. Contact an employment or immigration law attorney near you.