Every day, businesses must navigate a complex web of employment laws. As an employer, you need to be aware of the laws that govern the hiring and firing of employees and those that dictate employee benefits and protections. Ignorance of the law is no excuse, so it’s essential to stay up-to-date on the ever-changing landscape of employment law.
One area of employment law that is remarkably complex is immigration law. With the current administration’s crackdown on illegal immigration, employers need to be extra careful to comply with all applicable laws. Hence, it is best to seek help from an experienced business lawyer who has profound knowledge of immigration before hiring or firing an immigrant.
Here’s everything you need to know about immigration employment laws:
Hiring Foreign Workers
The first step in hiring a foreign worker is to obtain a labor certification from the Department of Labor (DOL). The DOL will only grant a labor certification if no qualified US workers are available to fill the position.
To apply for a labor certification from the DOL, you must submit Form ETA 9089. The form can be downloaded from the DOL website. The form asks for details, including:
- The job’s title and a brief description of the duties
- The minimum qualifications for the position
- The salary you will be offering
- The name and address of your business
- Your Employer Identification Number (EIN)
Once you have obtained a labor certification, you must file an Immigrant Petition for Alien Worker with the US Citizenship and Immigration Services (USCIS). This petition must be accompanied by an employment contract between the employer and the foreign worker.
The Immigrant Petition for Alien Worker is a form used by employers to petition the US Citizenship and Immigration Services (USCIS) to sponsor a foreign worker for a visa. The form asks for details about the worker, including:
- The worker’s name and date of birth
- The worker’s country of citizenship
- The worker’s job title and a brief description of the duties
- The dates of the employment
- The salary you will be paying the worker
- Your Employer Identification Number (EIN)
After you have filed the Immigrant Petition for Alien Worker, the USCIS will review your application. If they approve your petition, they will send you a Notice of Action.
The Notice of Action will include the USCIS case number and the dates of the employment. It is essential to keep this notice safe, as you will need it when you apply for a foreign worker’s visa.
The next step is for the foreign worker to obtain a visa. There are several types of tickets that foreign workers can apply for, depending on their qualifications and the type of work they will be doing.
Types of Visas That Immigrant Employees can Apply
There are five (5) preference categories for employment-based immigrant visas.
Employment-First Preference (EB-1)
This preference category is for persons of extraordinary ability in the sciences, arts, or business; outstanding professors and researchers; and certain multinational executives and managers.
Employment-Second Preference (EB-2)
This preference is for advanced degree professionals or persons with exceptional ability.
Employment-Third Preference (EB-3)
This preference is for skilled workers, professionals, and other workers. There are also specific special Immigrant Programs that fall under the Employment Third Preference category: religious workers, Schedule A Nurses and Physical Therapists, Physicians who agree to work in underserved areas, aliens granted Dependency and Indemnity Compensation (DIC) by the Veterans Administration, pilots/Flight attendants who have been furloughed by a U.S. Airline, Iraqi and Afghan Translators/Interpreters and its nationals who have provided services to the U.S. government, and Panama Canal Zone Employees.
Employment-Fourth Preference (EB-4)
This preference is for certain special immigrants, which include: religious workers, broadcasters in the U.S., employees of international organizations, Iraqi and Afghan translators/interpreters, Iraqis who have assisted the United States, Afghanis who have helped the United States, and those persons granted DED in Liberia.
Employment-Fifth Preference (EB-5)
This preference is for aliens to invest $1 million or more in a new commercial enterprise in the United States, which will create at least 10 full-time jobs for U.S. workers.
After the foreign worker has obtained a visa, they will be able to apply for a green card. The green card allows a foreign worker to live permanently and work in the US.
Firing Foreign Workers
Just like US citizens, foreign workers are protected by anti-discrimination laws. This means that employers cannot fire a foreign worker simply because of their nationality or immigration status.
There are, however, some circumstances in which an employer can legally fire a foreign worker. For example, an employer can terminate a foreign worker if they violate company policy, fail to perform their job duties, or are no longer authorized to work in the US.
Immigration employment law is a complex and ever-changing area of the law. As an employer, it’s essential to stay up-to-date on the latest developments to comply with all applicable laws.