What Are the Different Ways US Employers Can Legally Hire Workers Who Are Not U.S. Citizens?

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.

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.

Temporary 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

Permanent Programs

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.

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.

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.

Misclassification Risk

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.

Payroll Setup

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.

Permanent Establishment

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.

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.

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.