Immigration Law for Employers: What You Need to Know

Verifying Employment Eligibility

Among the first steps any small business owner looking to hire foreign workers must take is to ensure that an employee is legally authorized to work within the United States. Employers must adhere to certain guidelines and deadlines set forth by the Department of Homeland Security in verifying their workers’ employment eligibility. Failing to do so could lead to fines or other types of legal action.

The I-9 eligibility form is of particular significance for today’s small business owners. Each foreign worker must fill out a form with personal information including the worker’s name, date of birth, address and Social Security number, and this information must then be furnished to the employer for completion within three days of the employee’s hire. I-9 forms can then be stored and submitted electronically, and the information provided therein will then be checked against national databases to ensure the legal employability of the worker in question. In the event that there is a disparity between the information on the I-9 form and the information that appears in a national database, the worker may need to provide additional information to verify his or her identity. In the event that employment eligibility still cannot be verified, the employer cannot lawfully hire the foreign worker until it is completed.

Alien Labor Certification: An Overview

In some situations, an employer opts to “sponsor” a foreign worker so that he or she may obtain a green card, and the first step in the process involves the employer submitting an application for what is known as the employee’s alien labor certification. Generally, for this to be successful, the employer must demonstrate he or she is struggling to fill the position and that employing the foreign worker is necessary in order to hire a qualified applicant.

The process involved in doing so can prove tedious. The employer must supply proof that he or she has made efforts to hire a domestic employee and also clarification as to why his or her efforts to fill the position otherwise have proved unsuccessful. This is true in most situations, although several exceptions apply. Workers who are exceptionally qualified or those who have achieved particularly high levels of wealth or education may be exempt from this process.

In the event that an employer clearly demonstrates that efforts have been made to fill the position with a U.S. citizen and that those efforts have proved unsuccessful, the next step is to see that the labor certification application is approved at the state level. Once this is accomplished, it can then be submitted to the Department of Labor for consideration. As long as the application demonstrates genuine efforts on the part of the employer to staff the position domestically, it will likely be approved. Following approval, small business owners may then petition for the worker’s visa. Once this is completed, the final step is to submit the green card application.

An easier, less-involved option is for an employer to secure a non-immigrant visa, or one that allows a foreign worker to be employed in the United States for a predetermined period of time. For a non-immigrant visa to be approved, typically all that is needed is an application from the worker’s employer and evidence that the worker’s position truly exists. One of the key differences between a non-immigrant visa and an immigrant visa is the nature of the stay in the United States. Those with non-immigrant visas are only permitted to stay in the country while they actively employed, whereas those with immigrant visas, and ultimately green cards, may stay in the country indefinitely, even in the event that they are terminated from the position that helped them get the green card in the first place.

Ensuring Document Authenticity

While today’s employers are not expected to become experts in ensuring document authenticity, they are expected to take steps that are reasonable in doing so. Essentially, it is the duty of the employer to review all documents provided by workers to verify that they do, in fact, appear genuine, and that the information provided therein does apply to the employee furnishing the papers. Photocopies of verification documents are not allowed.

Hiring foreign workers is necessary for many companies to excel, but it must be done with consideration to modern immigration laws. This copy is intended to give employers an overview of the processes involved in lawfully hiring foreign workers.