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How To Hire Foreign Workers in the United States?

In today's globalized labor market, more workers are migrating to different countries looking for promising job opportunities. Navigating these complex rules is essential for U.S. employers and foreign employees. These laws aim to protect the rights of both U.S. businesses and foreign workers. They ensure fairness of the application process and employment practices.

This article discusses the nuances of hiring an immigrant worker. It provides insights into the crucial aspects of employment-based immigration laws.

The Role of the Department of Labor in Immigration

The U.S. Department of Labor (DOL) is a federal agency that ensures workers' well-being and enforces labor standards. It also administers federal laws and governs wage rates, hour standards, occupational health and safety, and racial diversity in the workplace.

Another key responsibility of the DOL is overseeing permanent labor certification (PERM).

What Is Permanent Labor Certification?

Permanent Labor Certification (Form ETA 9089) is a document issued by the DOL that allows a U.S. employer to hire a foreign worker for permanent employment. In most instances, before an employer can apply for an immigration petition, they should apply for labor certification. Through this, the DOL verifies that there are no available, willing, or qualified U.S. workers to take the job. Hiring foreign workers will not create a negative impact on the working conditions and wages of U.S. workers with similar roles.

The Secretary of Labor ensures that U.S. employers meet the standards for recruitment requirements. This protects the rights of U.S. employers and foreign workers.

What Are the Eligibility Requirements for U.S. Employers To Hire a Foreign National?

The U.S. employer should have a valid Federal Employment Identification Number (FEIN). It should also have a location within the United States to refer U.S. workers to.

Before filing a PERM application, the U.S. employer should also have a prevailing wage determination for the job order. The Office of Foreign Labor Certification's National Prevailing Wage Center issues determination.

The Role of the Department of Homeland Security in Immigration Employment

The U.S. Department of Homeland Security (DHS) supports enforcement of employment laws. It ensures that the U.S. workplace complies with U.S. laws. DHS supports federal, state, and local employment agencies in enforcing the prevailing wage determination, safety in the workplace, labor rights, and other protections and standards.

Moreover, the DHS offers discretionary protections to employees who were victims of exploitative employers. On a case-by-case basis, the DHS provides support even to victims who do not have the proper employment authorization. They assist in investigating work violations and holding abusive employers accountable to protect workers in the United States.

E-Verify Basics

The E-Verify system is an online database managed by the DHS in partnership with the Social Security Administration. Employers can use it to check potential employees' employment eligibility.

In general, E-Verify is not required for U.S. businesses. However, federal and state contractors must use the system. Some states have passed laws requiring public and private employers to use E-Verify for all new employees.

Labor Certification Application

In most cases, before a U.S. employer can extend a job offer, the employer should get a labor certification. During the labor certification process, the DOL certifies to the USCIS that there is a lack of available U.S. workers qualified, able, and willing to take the job. Employers must also show that the job opening to foreign workers will not create an adverse impact on the working conditions and prevailing wage rate of U.S. employees or U.S. citizens.

Participating in the labor certification program is the employer's responsibility. The DOL generally ensures that hiring foreign workers is in good faith. They also check that it does not create adverse impacts on U.S. workers.

General Rules on Hiring Foreign Workers

Securing work authorization is the foundation of the hiring process. In general, U.S. employers wanting to hire foreign nationals should file an immigrant petition on behalf of the foreign worker. Depending on the circumstances of each case, a foreign national may work in the U.S. permanently or temporarily. Business owners seeking to diversify their workforce must be attentive to these rules.

When assessing permanent labor certification applications, the DOL does not review employees' qualifications. The certifying officers check the immigration petitions and ensure that the job order is the same as the position that the DOL certified.

The authority to investigate an employee's qualifications rests with the U.S. Citizenship and Immigration Services (USCIS). USCIS assesses whether the job requirements match the qualifications of the foreign worker. This applies, in particular, to skilled workers or individuals with advanced degrees.

Employment Eligibility Verification

The federal government requires employers to verify their employees' eligibility to work in the United States. Employers must complete Form I-9 within three days after hiring an employee. This rule applies to both U.S. citizens and noncitizen employees. Employers and employees should complete the Employee Eligibility Verification (Form I-9).

The employee should attest to their right to work in the United States. They should also submit evidence of their identity. Evidence includes their passport, birth certificate, Social Security number, and other relevant document. After submission, the employers should check these documents to assess whether they are genuine.

All U.S. employers should verify that all employees hired are eligible for employment there. Failure to verify employment eligibility could result in severe consequences against the U.S. employer.

Permanent and Temporary Workers

There are two main categories of employment visas: permanent and temporary work visas.

Permanent Work Visa

Thousands of employment-based immigrant visas are available to noncitizens every fiscal year. Foreign workers who have the right combination of education, skills, and/or work experience may be able to secure permanent work visas.

  • The process starts with an immigrant visa petition filed with the USCIS on behalf of the foreign national. For some categories, it begins with applying for Permanent Labor Certification with the DOL.
  • Foreign workers living in the U.S. may seek an adjustment of status to that of an LPR. This is done by filing Form I-485 or the Application to Register Permanent Residence or Adjustment of Status.
  • For foreign workers who are outside of the U.S. or are processing their documents in their home country, the work visas are processed in the U.S. embassy or through consular processing. The foreign worker must complete the Form DS-260 or the online Visa Application.
  • The applicant should provide the biometrics required, medical information, and other supporting documentation. The visa applicant must also meet other eligibility requirements for the immigrant visa or adjustment of status.

Congress issues a numerical limit on the number of employment-based visas issued every fiscal year. With this numerical limit, foreign workers can only get LPR status if there is an immigrant visa available. This availability is often based on the visa category, priority date, and country of origin.

Family members of the primary visa applicant are also considered in the immigration process. Although the main focus of the employment-based visa is on the employee, the U.S. government also gives importance to their family members.

For more information about permanent workers or employment-based green cards, visit this article by USCIS about permanent workers.

Temporary Work Visas

You may also come to the U.S. temporarily as a nonimmigrant worker. Your U.S. employer should generally file a temporary nonimmigrant visa petition on your behalf with the USCIS. There are only a few nonimmigrant classifications that allow you to work in the U.S. without having an employer first file a work petition on your behalf. This article by FindLaw also talks about temporary visa classifications.

Tips on Hiring Foreign Workers

The following are some of the tips when hiring non-U.S. citizens or foreign workers:

  • Secure Certification from the DOL. The first step is to check whether your business meets the basic requirements to hire a foreign national to work in the United States. You should also get a foreign labor certification from the DOL.
  • Prepare a well-defined employment contract. As a U.S. employer, you need to have a valid contract that meets the legal requirements for employment. For instance, it should cover safety and health standards, wages and hours of work, health and retirement benefits, etc.
  • Research the types of employment visas. There are various types of U.S. visas available for foreign employers intending to work in the United States. For instance, the U.S. employer can sponsor the prospective employee for a lawful permanent resident status or a green card. They can also sponsor a nonimmigrant visa or H-1B visa. Temporary work visas are also available.
  • Use E-Verify. E-Verify is an online system that enables U.S. employers to check the employment authorization of their employees.
  • Start the recruitment process early. It is helpful to start the hiring process as early as possible. Particularly once you have identified the employment gap in your business.

Seek Legal Advice From an Immigration Law Attorney

Nowadays, more people from different national origins are working together to create a globalized workforce. With this, it is crucial to stay updated about employment law in relation to immigration law.

An immigration law attorney can help you understand the complex rules of hiring foreign workers. They can clarify the provisions of the Immigration and Nationality Act (INA) that apply to your case. They can also update you on immigration reforms affecting your immigration petition. Moreover, they can also offer guidance in completing and submitting employment eligibility verification forms.

FindLaw has a directory of immigration law attorneys near you. Contact them to gain tailored advice applicable to your case.

Learn About Immigration Law for Employers

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