Hiring Foreign Workers in the U.S.? Things You Should Know

Why Employers Must Verify Employment Authorization and Identify New Employees?

Background:

In 1986, Congress reformed U.S. immigration laws to preserve the tradition of legal immigration while seeking to close the door to illegal entry
The employer sanctions provisions, found in section 274A of the Immigration and Nationality Act (INA), were added by the Immigration Reform and Control Act of 1986 (IRCA)
These provisions further changed with the passage of the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996
Employment is often the magnet that attracts people to reside in the United States illegally
The purpose of the employer sanctions law is to remove this magnet by requiring employers to hire only individuals who may legally work here: U.S. citizens, noncitizen nationals, lawful permanent residents, and aliens authorized to work

To comply with the law, employers must:

Verify the identity and employment authorization of each person they hire;
Complete and retain a Form I-9, Employment Eligibility Verification, for each employee; and
Refrain from discriminating against individuals on the basis of national origin or citizenship

You can find the Handbook for Employers M-274 here

FORM I-9

This handbook will tell you how to complete Form I-9, which helps you verify that your employees’ work authorization in the United States
You must complete a Form I-9 for every new employee you hire after Nov. 6, 1986, as well as new employees hired in the Commonwealth of the Northern Mariana Islands (CNMI) on or after Nov. 28, 2009
This includes U. S. citizens and noncitizen nationals who are automatically eligible for employment in the United States
You can download Form I-9 (PDF) (PDF, 726.73 KB)and the instructions (PDF, 355.87 KB) on the USCIS website at gov/i-9-central
You may also order paper forms at gov/forms/forms-by-mailor by calling the USCIS Contact Center at 800-375-5283 (TTY: 800-767-1833)
You must use the current version of Form I-9 found at gov/i-9. A revision date with an “N” next to it indicates that all previous versions with earlier revision dates are no longer valid
Form I-9 is available in English and Spanish. Employers in the United States and its territories may use the Spanish version of Form I-9 as a translation guide for Spanish-speaking employees but must complete and retain the English version

Employers in Puerto Rico may use either the Spanish or the English version of Form I-9.

How to Ask About Work Authorization?

Since 1986, U.S. employers have been required to confirm the work authorization of each new hire at the time of hire and to keep records to show compliance with this rule
The law obliges you to confirm that every new hire is authorized to work, the law prohibits you from discriminating on the basis of national origin or citizenship status
The “Anti- Discrimination notice” warns employers against specifying which types of work authorizing documents they will accept, even if the reason for the preference is that one type has a future expiration date, and another does not

How Do I Check the Veracity of The Documents Provided by The New Employee?

Employers are required to confirm the work authorization of every new hire at the time of hire, using Form I-9for the purpose
You are not supposed to scrutinize a particular type of work authorization
An employer can be penalized for discrimination for checking documents too zealously or insisting on a particular document, such as a green card
A formal I-9 compliance policy might be a good way to demonstrate your good faith

You can find out more details on the E-Verify Compliance here

Tips on Due Diligence before Hiring

If any information comes your way, subsequent to hire, that suggests a worker may not be authorized to work in the U.S., you should research into it
Please note the employers can be held liable not only for actual knowledge of a worker’s undocumented status but also for “constructive knowledge”. In other words, for having reason to know
Having a reason to know might be, for instance, receiving notice from the Social Security Administration (SSA) that someone on your payroll is using a Social Security number (SSN) that doesn’t match the name for that number in the SSA database
You should be mindful of the fact SSA database discrepancies don’t always mean unauthorized workers, as the SSA “no-match” letters themselves explicitly state, and hasty action on partial information could lead to a discrimination claim

Are There Penalties for Hiring Undocumented Immigrants?

You may be subject to civil and criminal penalties for hiring undocumented immigrant workers
Civil penalties range from a minimum of $375 per unauthorized worker for a first offense up to a maximum of $1,600 per worker for a third or subsequent offense
If you are found to have engaged in a “pattern and practice” of hiring undocumented workers, then you can be fined up to $3,000 per employee and/or imprisoned for up to six months

Can I Avoid the aforementioned situation by Hiring Independent Contractors?

You are not obliged to confirm the work authorization of anyone you hire as an independent contractor
However, you know or have reason to know that an independent contractor is not authorized to work in the U.S., you can nevertheless be held liable

How Can You Help A Prospective Hire to Get Work Authorization?

If a worker you would need to hire doesn’t have the necessary authorization, you might be able to help him or her get it, depending on the type of skills you are looking for
Please note there is no standard solution for a situation like this
You may be able to sponsor a prospective employee for lawful permanent residence in the U.S.
However, your prospective hire needs to meet certain qualifications, have the required skills required for the job
Even your country of birth could be a guiding factor for the type of work visa your prospective hire will be eligible for
For example, The E-2 visa can be filed for treaty country citizens

See the U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

To read more about the general qualifications of E1 and E2 visas, click here

For dependent family members, “Family of E-2 Treaty Investors and Employees” read here

Read our blog about sponsoring a foreign worker for E-2 Visa who is already in the USA here

However, if you have an international cultural program component of a business you should be able to petition for a Q visa. Please note it is different from a J1 visa which is more common.

Read all about Q visa here

You can find about H1B Visa categories (EB1, EB2, EB3, and EB5) here

Nonimmigrant Visas with their Brief Eligibility List:

A-1.Ambassadors, public ministers, or career diplomats, and their spouses and children
A-2.Other accredited officials or employees of foreign governments, and their spouses and children
A-3.Personal attendants, servants, and employees of A-1 and A-2 visa holders, and their spouses and children
B-1.Business visitors
B-2.Visitors for pleasure or medical treatment
C-1.Foreign travelers in immediate and continuous transit through the U.S.
D-1.Crew members who need to land temporarily in the U.S. and who will depart aboard the same ship or plane on which they arrived
D-2.Crew members who need to land temporarily in the U.S. and who will depart aboard a different ship or plane than the one on which they arrived
E-1.Treaty traders working for a U.S. trading company that does 50% or more of its business with the trader’s home country, and their spouses and children
E-2.Treaty investors working for a U.S. company with 50% or more of its investment capital coming from the investor’s home country, and their spouses and children
E-3.Australian professionals coming to the United States to perform services in a specialty occupation (similar to an H-1B, but with a separate allotment of 10,500 visas). Spouses and children may accompany the E-3 visa holder
F-1.Academic or language students
F-2.Spouses and children of F-1 visa holders
F-3.Citizens or residents of Mexico or Canada commuting to the U.S. to attend an academic school
G-1.Designated principal representatives of foreign governments coming to the U.S. to work for an international organization, and their spouses and children
G-2.Other accredited representatives of foreign governments coming to the U.S. to work for an international organization, and their spouses and children
G-3.Representatives of foreign governments and their immediate family members who would ordinarily qualify for G-1 or G-2 visas except that their governments are not members of an international organization
G-4.Officers or employees of international organizations and their spouses and children
G-5.Attendants, servants, and personal employees of G-1 through G-4 visa holders, and their spouses and children
H-1B.Persons working in specialty occupations requiring at least a bachelor’s degree or its equivalent in on-the-job experience, and distinguished fashion models
H-1C.Nurses who will work for up to three years in areas of the U.S. where health professionals are recognized as being in short supply
H-2A.Temporary agricultural workers coming to the U.S. to fill positions for which a temporary shortage of U.S. workers has been recognized by the U.S. Department of Agriculture
H-2B.Temporary workers of various kinds coming to the U.S. to perform temporary jobs for which there is a shortage of available, qualified U.S. workers
H-3.Temporary trainees coming for on-the-job training unavailable in their home countries
H-4.Spouses and children of H-1, H-2, or H-3 visa holders
I-1.Bona fide representatives of the foreign press coming to the U.S. to work solely in that capacity, and their spouses and children
J-1.Exchange visitors coming to the U.S. to study, work, or train as part of an exchange program officially recognized by the U.S. Department of State
J-2.Spouses and children of J-1 visa holders
K-1.Fiancés or fiancées of U.S. citizens coming to the U.S. for the purpose of getting married
K-2.Minor, unmarried children of K-1 visa holders
K-3.Spouses of U.S. citizen petitioners awaiting USCIS approval of their immigrant visa petition and the availability of an immigrant visa, who’d like to enter the U.S. and apply to adjust status, as a supposedly shorter way through the system (This visa is almost never used, as it tends to actually save no time and cost more.)
K-4.Unmarried children of K-3 visa holders.
L-1.Intracompany transferees who work as managers, executives, or persons with specialized knowledge
L-2.Spouses and children of L-1 visa holders
M-1.Vocational or other nonacademic students, other than language students
M-2.Spouses and children of M-1 visa holders
M-3.Citizens or residents of Mexico or Canada commuting to the U.S. to attend a vocational school
N-8.Parents of certain special immigrants
N-9.Children of certain special immigrants or N-9 visa holders
NATO-1, NATO-2, NATO-3, NATO-4, and NATO-5.Representatives, officials, and experts coming to the U.S. under applicable provisions of the NATO Treaty, and their immediate family members
NATO-6.Civilians accompanying military forces on missions authorized under the NATO Treaty, and their immediate family members
NATO-7.Attendants, servants, or personal employees of NATO-1 through NATO-6 visas holders, and their immediate family members
O-1.Persons of extraordinary ability in the sciences, arts, education, business, or athletics
O-2.The essential support staff of O-1 visa holders
O-3.Spouses and children of O-1 and O-2 visa holders
P-1.Internationally recognized athletes and entertainers, and their essential support staff
P-2.Entertainers coming to perform in the U.S. through a government-recognized exchange program
P-3.Artists and entertainers coming to the U.S. in a group to present culturally unique performances
P-4.Spouses and children of P-1, P-2, and P-3 visa holders
Q-1.Exchange visitors coming to the U.S. to participate in international cultural exchange programs
Q-2.(Walsh visas) Participants in the Irish Peace Process Cultural and Training Program
Q-3.Spouses and children of Q-1 visa holders
R-1.Ministers and other workers of recognized religions
R-2.Spouses and children of R-1 visa holders
S-5.People coming to the U.S. to supply information to U.S. authorities about a criminal organization
S-6.People coming to the U.S. to provide information to U.S. authorities about a terrorist organization
T-1.Victims of trafficking in persons
T-2, T-3.Spouses and children of victims of trafficking
Trade visas for Canadians and Mexicans
U-1.People who have suffered “substantial physical or mental abuse” as a result of certain U.S. criminal violations including domestic violence and who are assisting law enforcement authorities
U-2, U-3.Spouses and children of U-1 visa holders
Spouses and children of U.S. lawful permanent resident petitioners who have already waited three years for the approval of their visa petition or for an immigrant visa to become available, so long as their visa petition was submitted on or before December 21, 2000

Whether you’re an employer considering implementing a Q-1 exchange program within your company, or you are a foreign national considering coming to the US in a cultural exchange program that would require either a Q-1 or J-1 visa, or some other visa. Your next step is determining how and where to apply for your visa.

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