Foreign workers can be an asset to your business. However, if you are interested in hiring foreign workers then you need to know how to do so legally so that the employment relationship can continue, the employee can avoid deportation and you can avoid the legal consequences for illegally employing a foreign worker. Generally, the government will only approve foreign workers to fill jobs that are essential to the United States economy and for which the employer has been unable to find United States workers to fill the position.
How to Hire a Foreign Worker
For many employers, the first step in hiring a foreign worker is to apply to the United States Department of Labor. The Department of Labor will require you to present evidence that there are insufficient qualified United States workers available who will perform the job for the prevailing wage. The Department of Labor’s interest is in protecting the job opportunities and rights of American workers. The requirement to obtain certification or approval from the Department of Labor only applies to certain types of workers who are applying for specific types of visas.
Once the Department of Labor approves the employer’s request, or the employer determines that Department of Labor certification is not required, then the employer must apply to the U.S. Citizenship and Immigration Services for a visa for the worker. The potential employee must establish that they are eligible to enter the United States pursuant to the Immigration and Nationality Act.
Temporary workers, such as those involved in agriculture, seasonal workers (such as ski instructors or hotel workers), entertainers and others may be eligible for specific temporary worker designations. The purpose of the temporary worker designation is to allow the employee to legally work in the United States for a short amount of time, for example during one harvest season or one ski season. The employer may be able to hire foreign temporary workers again the following season if there are is a lack of qualified United States workers who are willing to work for the prevailing wage and if hiring foreign workers will not adversely affect the rights or working conditions of United States workers.
Permanent workers are granted visas according to predetermined preferences. Generally, in order to be considered for a permanent worker visa, the potential employee must have extraordinary abilities in the sciences, arts, business, education or athletics, hold an advanced degree, belong to a special class such as a religious worker, be a retired employee of an international organization or be a large investor in certain American businesses.
If the worker whom you want to hire already has a green card then you may not have to go through all of the steps that you would to hire a person who is not currently a resident of the United States. In order to protect yourself as an employer and often as the worker’s sponsor it is important thoroughly understand the foreign worker immigration laws before employing a foreign worker.
Get Help from an Experienced Employment Law Attorney
Have you been discriminated against by a potential or current employer -- as a job applicant or current employee? To best protect your legal rights you should discuss your situation with an employment lawyer. Meet with a local employment attorney sooner rather than later to protect your rights.