How To Hire Foreign Workers in the United States

In today’s labor market, most businesses extend their boundaries beyond borders. Many U.S. employers source global talent to support their growth and fill skill gaps. Hiring international workers can enhance our workforce and add valuable expertise. But it can also present unique legal challenges.

This is why many employers get an attorney’s help to ensure they meet immigration and labor laws and keep their hiring process on track.

This article outlines what employers should know about hiring foreign workers and navigating employment-based visas. This information will also help foreign employees understand their rights as immigrant workers in the U.S.

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
• Racial diversity in the workplace
• 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.

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 a determination.

The Role of the Department of Homeland Security in Immigration and Employment

The U.S. Department of Homeland Security (DHS) supports the 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
• 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.

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 review the immigration petitions and ensure that the job order matches the position the DOL certified.

The authority to investigate an employee’s qualifications rests with 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 in specialty occupations or individuals with advanced degrees.

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.

Employment Eligibility Verification

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

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, employers should check these documents to assess their authenticity.

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.

What Is E-Verify?

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. Through E-Verify, employers can compare information provided by the employee to records available from the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA).

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.

Can Employers Check Immigration Status After Hiring?

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to check employees’ eligibility to work in the United States. Employers should not question the employee’s immigration status after hiring. But there are certain situations where more verification is essential and lawful.

For instance, U.S. employers should re-verify employees whose work permits are about to expire. U.S. employers should also follow the guidelines set by the U.S. Citizenship and Immigration Services (USCIS).

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 LPR status. This is done by filing Form I-485, the Application to Register Permanent Residence or Adjustment of Status.
• For foreign workers outside the U.S. or processing their documents in their home country, work visas are processed at 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 obtain LPR status only if an immigrant visa is 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 the employee, the U.S. government also prioritizes their family members.

Temporary Work Visas

You may also come to the U.S. temporarily as a nonimmigrant worker. Your prospective employer in the U.S. 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.

Employee’s Rights Under Anti-Discrimination Laws

The U.S. Equal Employment Opportunity Commission protects immigrants from employment discrimination. The Equal Employment Opportunity Commission (EEOC) enforces these protections. EEOC is a federal agency that enforces laws that prohibit employment discrimination based on:

• Race
• National origin
• Religion
• Sex
• Age

Most U.S. employers with 15 or more employees must follow EEOC laws. Labor unions and employment agencies should also follow this rule. Anti-discrimination laws apply to all types of work scenarios. No one should discriminate when hiring, firing, promoting, or training employees. Employers should also offer fair wages and benefits to their employees.

Discrimination Based on Ancestry

Discrimination may include discrimination based on a person’s customs, looks, or language. In these cases, the person doesn’t need to prove ancestral ties to a specific country or region. For instance, the person may appear Mexican and experience discrimination based on specific characteristics, even though they aren’t Mexican.

Harassment Based on National Origin

Verbal or physical conduct based on one’s nationality, such as ethnic slurs, is illegal. This is particularly relevant if these acts create a hostile or pervasive work environment. Or it interferes with performance at work or impacts job opportunities. Examples of this harassment include comments such as “Go back to where you came from.”

Discrimination Based on Accent

Discrimination based on a foreign accent is unlawful unless the accent significantly affects job performance. For instance, if effective English communication is a requirement for doing one’s job. But a migrant with a foreign accent who can communicate in English and people understand them should not face discrimination.

What Does the Immigration and Nationality Act Say About Discrimination?

The Immigration and Nationality Act (INA) has an anti-discrimination provision. This provision bans discrimination based on citizenship status. INA prohibits the following:

• U.S. Citizenship discrimination in hiring, firing, recruiting, or referring for a fee
• National origin discrimination in hiring, firing, recruiting, or referring for a fee
• Unfair documenting practices in the employment eligibility verification
• Retaliation or intimidation

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 employees intending to work in the United States. For instance, a U.S. employer can sponsor a prospective employee for lawful permanent resident status (a green card). They can also sponsor a nonimmigrant visa or H-1B visa. Temporary work visas are also available.
• Use E-Verify, even if you’re not required to. E-Verify is an online system that enables U.S. employers to verify their employees’ employment authorization. This program reduces the risk of hiring mistakes and costly violations.
• Stay informed about changing immigration laws. Immigration rules and visa caps are evolving. Keep up with updates to avoid delays, stay compliant, and adjust your hiring strategy when needed. An immigration attorney can help with this.

Hiring Immigrant Workers? Get Legal Advice

In today’s globalized workforce, hiring workers from different countries can be an asset to your business. But it’s critical that you understand the rules that govern who you can hire, how to sponsor them, and what documentation you need.

Understanding how immigration laws and employment laws intersect can be overwhelming. This is why some employers get legal help with this process. An immigration law attorney can guide you through the different employment‑based visa categories and help determine which option best fits your hiring needs. They can also:

• Assist with preparing and filing petitions for foreign workers, including H‑1B, L‑1, O‑1, or other employment‑based visa programs
• Advise on Department of Labor requirements, including wage rules and labor condition applications
• Help you stay compliant with federal and state laws when onboarding, verifying, and retaining foreign employees
• Identify any red flags in your petition application process that could lead to delays or denials

FindLaw’s directory of immigration attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals in your area. You can narrow your search by reviews, whether they offer free consultations, and more.