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An Introduction to Hiring Foreign Workers - March 2012

March 16, 2012

Employers seeking to hire foreign nationals must be careful to comply with all requirements of United States immigration law as well as the rules and regulations from the U.S. Department of Labor. Immigration laws are complex, constantly change, and present harsh consequences for those who fail to strictly conform to their requirements. Of paramount importance for both the employer and the foreign worker is the need to maintain valid work authorization and legal status throughout the entire duration of employment.

Failure to maintain the proper work authorization can result in hefty fines and penalties for the employer and deportation of the employee—and his family, if their immigration status is derivative--from the country.  The worker (and family) may also be prohibited from re-entering the United States as a result of “overstaying” their status. In the event of an overstay, the foreign worker and family may lose their eligibility to adjust status while remaining in the United States or to extend their stay when petitioning to renew their work authorization.

There are two main categories of foreign workers – immigrant and nonimmigrant. An “immigrant” is a person who intends to come to the United States and make a permanent home here. A “nonimmigrant” is a temporary visitor/worker who is required to maintain a foreign address as a condition of their nonimmigrant status. The requirements for sponsoring immigrant workers and nonimmigrant workers vary significantly. A lawful permanent resident (or “green card” holder) is the classic immigrant. Nonimmigrant workers fall into numerous classifications including H-2A (temporary agricultural workers), H-2B (nonagricultural temporary workers), L-1A (executive or managerial intracompany transferee), R-1 (religious workers), TN (NAFTA professional worker), and the most widely known H-1B (aliens in specialty occupations, professionals). Each category has its own specific requirements. Due to the short length of this piece, we will not go into detail about the different classifications of immigrant and nonimmigrant workers.

The U.S. Department of Labor requires that the employment of foreign workers must not adversely impact any U.S. workers (U.S. citizens and permanent residents). The employer must therefore obtain a Prevailing Wage Determination (PWD) from the U.S. Department of Labor which will provide the minimum compensation that the foreign worker must receive in order for the employer to sponsor the worker. The PWD is based upon several factors including geographic location, and level of education and experience required for the position. It is critical that the employer accurately describe the position in order to obtain an accurate prevailing wage. A PWD is required for most employment-based petitions.

The processes differ for hiring temporary workers, such as H-1B specialty workers, as opposed to sponsoring workers for permanent residence (more commonly known as the “green card”). An employer will file Form I-129 (Petition for Nonimmigrant Worker) to petition for a temporary worker, such as an H-1B specialty worker. To petition for an immigrant worker, the employer must file Form I-140 (Petition for Immigrant Worker). Depending on the job classification and other factors, the employer may be able to file Form I-485, Petition to Register or Adjust Status concurrently with the I-140. In most cases, the employer must wait until the worker’s “priority date” on the approved I-140 becomes current before filing the I-485. In some cases, the employer and employee must wait years for a priority date to become current. Even a seemingly innocent or immaterial error in a petition may result in a denial of the benefit sought and, in extreme cases, may set the employer and worker back years in the process.

United States immigration law has strict requirements and it is highly recommended that an employer enlist the assistance of an experienced immigration attorney in order to maximize their chances of success. Pender & Coward has the knowledge and experience to help guide employers through the complex process of hiring foreign workers.

Written by Anne C. Lahren.