- Overview of Legally Hiring Non-US Citizens
- Why You Should Legally Hire Workers
- Dangers of Hiring Undocumented Immigrants
- About Foreign Labor Certification
- Foreign Labor Programs
- Steps to Hire Foreign Workers Legally
- The Employee’s Obligations
- Challenges of Hiring Foreign Citizens
- Trapped With an Undocumented Employee?
- How to Hire Employees From Foreign Countries
- How Can IAS Help?
Overview of Legally Hiring Non-US Citizens
The United States Government regards every company as a prospective foreign labor employer and places them in the position to execute immigration laws.
This responsibility remains static whether the actual company intends to recruit foreign workers or not.
US employers now have the obligation to confirm the immigration status and authorization of every foreign employee and maintain proper documentation to authenticate their compliance.
Why You Should Legally Hire Workers
Your company hire should be done lawfully so you can prevent the legal pitfalls from contravening the Immigration and Nationality Act since your hiring process must be non-discriminatory towards natural US citizens, lawful permanent residents, refugees, foreign nationals and anyone else with work permit.
Except specific laws, regulations or executive orders permit you to consider the citizenship status of candidates, you should recruit without any consideration for national origin.
Where breaches occur, the Immigrant and Employee Rights (IER) section of the Civil Rights Division in the U.S. Department of Justice investigates claims against employers who have between 4 to 14 workers while the Equal Employment Opportunity Commission (EEOC) investigates claims against employers with 15 or more workers.
You should also avoid making presumptions about the employment authorization status of any potential worker. Some employers do this by setting subjective requirements for employment positions that they feel unauthorized workers cannot meet, such as having an SSN.
A foreign person may have their work permit without yet having a Social Security Number (SSN). If you dismiss their application because they don’t have an SSN, you may be liable for a discriminatory suit because the Social Security Administration (SSA) grants permission to work while awaiting SSN issuance.
The Internal Revenue Service also provides a route for handling wages and taxes during the waiting period. Employers who use E-Verify may have to delay a worker’s case until the employee receives an SSN.
Dangers of Hiring Undocumented Immigrants
When hiring foreign workers, you have to ensure the workers present the right documents, or you may face stiff penalties or even criminal prosecution.
Immigration Customs and Enforcement (ICE), the official government organization that oversees immigration enforcement investigates, apprehends, arrests, detains, and removes unlawful immigrants within the United States. ICE is an agency of the US Department of Homeland Security.
ICE focuses its efforts on critical infrastructure and on employers who exploit and abuse unauthorized immigrant workers. However, even if you are a small business owner, you would be in serious legal trouble if you knowingly employ illegal workers, whether you treat them fairly or not.
About Foreign Labor Certification
Hiring foreign nationals the right way includes obtaining the right certification(s) from the relevant official government organization.
Although several government agencies ultimately permit foreign workers to work in the United States, your first point of call as an employer is to be certified by the US Department of Labor.
This certification does not translate to a visa approval. For the visa, you must petition the US Citizen and Immigration Services as a US employer.
Intending foreign employees also need to prove their admissibility into the US based on the provisions of the Foreign Labor Certification (FLC). FLC programs balance hiring American workers with foreign workers.
Whether workers from other countries will be filling temporary or permanent employment positions, it must not adversely affect the wages, benefits and job opportunities of American workers.
Foreign Labor Programs
The Immigration and Nationality Act (INA) mandates the Department of Labor to provide various Foreign Labor Certification programs while the Code of Federal Regulations (CFRs) publishes the regulations of each program. Each FLC program has specific rules to be followed. There are temporary programs and permanent programs.
Popular programs in this category include:
- Temporary agricultural workers – H-2A
- Temporary non-agricultural – H-2B
- Temporary workers in specialty professions – H-1B
- Longshore work – D-1
US employers who obtain the permanent labor certification can employ foreigners into permanent employment positions in the United States.
Before this certification is issued, the Department of Labor (DoL) has to guarantee to the USCIS that the available US workers cannot suffice for the job opportunities in the field of intended employment.
There are several directives guiding employers interested in hiring foreign workers and the directives are updated regularly by the DoL.
Among other things, as a US employer, you must first establish the identity and employment eligibility of the intended employee by filling Form I-9.
Here are documents you can request for verification:
- U.S. passport
- Alien registration receipt card
- Permanent resident card
- Valid foreign passport with I-551 stamp
- Valid employment authorization document (with a photograph) by USCIS
You can confirm the validity of these documents on the US Citizenship and Immigration Services website and through the M-274 handbook.
Ensure you complete Form I-9 to protect you from liability if you discover that the employee is not unauthorized to work in the U.S.
Get the Required Certification
Apply for the appropriate certification from the Department of Labor. For your application to be approved, you need to prove that there is a shortage of qualified US workers to do the job at the prevailing wage.
Your documentation should include evidence of a genuine vacancy for the foreign worker to fill and proof that the vacancy fits the criteria for your specified Foreign labor Certification program. You also need to fill and sign the suitable Employment and Training Administration (ETA) form.
You must provide evidence that you can afford to pay the authorized worker a minimum of the prevailing wage.
Search for Prospective Foreign Employees
Searching for talents is a demanding enough task when you are recruiting a lawful permanent resident or US citizen. With the additional processes involved in hiring foreigners, you need to go the extra mile when searching for candidates.
Start searching for candidates by posting your vacancy on job sites that serve foreign workers. As you review resumes, remember to keep an open mind. International resumes may contain sensitive information like photo, race or marital status which you may not want from applicants.
After narrowing your options to the best candidates, conduct official interviews. If the candidate you intend to hire still lives in their home country, you can use video conferencing tools for the interviews.
Note that you still need the relevant Foreign Labor Certification even if the worker would be working remotely, but immigration visa is not necessary.
Dedicate Enough Time for the Hiring Process
Getting the right candidates that are authorized to work in the US can be a time-consuming process. This applies if the prospects reside permanently in the US. So ensure you devote enough time for the hiring process.
If a foreign talent has to accept employment offer for the position you aim to fill, then you may spend about 6 times more to work out their residency in the US. Some positions can take as long as 9 months to be filled.
Moreover, there is no guarantee that hiring workers from foreign countries will work out just because you found someone that meets your expectations.
While the paperwork may be solid at your end, the candidate may experience complications with the United States Government that will stall their visa application or result in visa denial.
If such happens, you will have to restart the hiring process.
Petition for Work Visas
If your candidate does not reside in the US, you need to petition for a work visa with the US Citizenship and Immigration Services.
The process of getting one takes time that can range from weeks to months. It also costs a lot of money.
If your candidate is a permanent resident, you can verify if they are authorized to work with Form 1-9 and the E-Verify portal.
When petitioning for work visas, your responsibility is not limited to bringing the immigrant over but also keeping them in the country by ensuring their compliance with immigration laws.
Here is the procedure to petition for a work visa:
- Apply for a Labor Condition Application (LCA).
- Provide company statements and required documents.
- File the petition on behalf of the foreign employee.
Comply with the Applicable Tax Laws
All foreign employees must apply for a Social Security Number which will be issued by the Social Security Administration.
They will give you the number as their employer for tax purposes. Foreign workers, US citizens and permanent residents are subject to the payroll taxes by the Internal Revenue Service.
Nonresident alien workers and foreign workers that work for a US employer from outside the US are to fill Form W-8 BEN for tax withholding and reporting.
Immigration Customs and Enforcement (ICE) requires all employees to fill Form W-2 so it can compare the information to Form I-9 for discrepancies.
If any inconsistency is detected, the employer would receive a no-match letter. A no-match letter does not provide sufficient basis to fire an immigrant worker. To avoid getting sued for discriminatory practices, follow the instructions in the letter.
The Employee's Obligations
As an employer, you are not allowed to discriminate against candidates with valid employment eligibility documents because they are not US citizens or because of their natural origin. Likewise, an immigrant that has not been authorized must not accept employment in the United States.
Those admitted into the country by the US Citizenship and Immigration Services through work-related nonimmigrant classifications may be permitted to work in the United States as they have employment authorization due to their immigration status.
Other foreign nationals need a US employer to petition for them and they will apply individually for their Employment Authorization Document (EAD).
A foreign worker who has an employment authorization document can work in the United States regardless of their natural origin or citizenship. Work permit is only valid for 1 year though it can be renewed every year. However, there is no guarantee on renewal.
Challenges of Hiring Foreign Citizens
Foreign Labor Laws
Every country has employment laws that apply to its nationals who accept employment from US organizations. US employers may struggle to navigate the differences compared to US employment requirements. Yet, noncompliance may result in fines and penalties.
When a US company manages a contractor such that they pay them a fixed salary and organize their work schedule, the contractor can claim that they are entitled to full time employee benefits and their role as a contractor is a misclassification.
Each country has its payroll setup and contributions which varies with what is obtainable in the US. US employers must ensure compliance for any foreign employee in their company or they may be liable to fines.
A US company that generates revenue from its fixed presence in another country may be liable to local corporate taxes. Failure to fulfill its permanent establishment responsibilities may result in tax fines and lawsuits.
Trapped With an Undocumented Employee?
As a US employer, you are obliged to verify the work authorization of every new employee with Form I-9 when they are hired. However, you can be penalized for discriminatory practices when you are fanatical about the work authorization documents.
Immigrant workers submit a lot of sensitive information to the Department of Homeland Security and you are expected to use your access responsibly. Once documents on Form I-9 appear genuine to a reasonable degree, you will not be penalized for accepting them, even if they later turn out to be inauthentic.
There are several steps you can take to show respect for and commitment to Immigration Customs and Enforcement (ICE)’s requirements. You can adopt a formal I-9 compliance policy. You can also sign up to make ICE your workforce compliance partner through its IMAGE program.
If you are on the verge of hiring a foreign worker and you encounter credible information that the employee may not be authorized to work in the US, you should investigate it because that information may later count as ‘constructive knowledge’ and you will be liable to legal actions even though you didn’t factually know about the employee’s undocumented status.
Constructive knowledge means that you had reasons to know about the undocumented status of an employee an an instance that support this includes: receiving a ‘no-match’ letter from the Social Security Administration (SSA) about someone on your payroll using a name that doesn’t match the Social Security number (SSN) on the SSA portal.
However, you need to measure your response to such notice because such discrepancies don’t always equal to undocumented employees. You may be liable to a discrimination claim if you are hasty with your conclusions.
It is best to discuss with a professional immigration attorney on the right course of action.
How to Hire Employees From Foreign Countries
Hiring workers overseas comes with its challenges, but if you run a global company or organization, it may be expedient. Here are two routes to hire a foreign employee:
Create a Foreign Legal Entity
If you will need a regular stream of foreign employees to establish a global presence for your company, you need to seriously consider setting up an entity in the countries of your choice. Creating a foreign entity grants you full autonomy over each local branch you set up. However, this is an expensive option that is only suitable for large companies that are looking to build a sizable foreign workforce.
Partner With a Global Employer of Record
A simpler option suitable for small and medium-sized companies is to partner with a global employer of record (EoR). The EoR would be responsible for recruitment, payroll, taxes processes of the foreign hires as well as compliance to each region’s laws and regulation. With EoR, you can employ talents across various countries without bureaucratic lags.
You can hire a foreign employee legally when you get the right certificate from the Department of Labor, petition for work visas for the talents that meet your expectations and comply with the immigration tax laws. Remember to complete form Form 1-9 to protect yourself from any liabilities that could ensue if an employee presented inauthentic documents.
How can IAS Help?
Hiring undocumented foreign workers – whether you know it or not – may result in fines and legal troubles. The way out is not to set subjective requirements that eliminate non-US citizens from your applicants’ list because a broad range of immigrants are authorized to work in the United States.
Asides the legal pitfalls such discriminatory practices may bring, you may also miss out on the best talents for your company.
Last modified on January 6th, 2023 at 2:32 pm
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