An immigrant worker is someone who moves to another country with the goal of permanent residence and employment. Although many people think "illegal" when they hear the term "immigrant," the U.S. is home to millions of legal immigrants who play a significant role in the economy. In fact, immigrants and their U.S.-born children made up roughly 26% of the U.S. population in 2020. With so many potential immigrant workers in the country, small businesses must know the laws and regulations that govern their employment.
What to know about hiring foreign workers
Hiring immigrant workers can be beneficial to your organization, but it doesn't come without its challenges, especially for small business owners. The laws and regulations surrounding immigrant workers are ever-changing, and small businesses often don't have dedicated HR staff to keep up. If this sounds like your business, consider partnering with a top HR outsourcing service to seek guidance on staying compliant.
Immigrant worker visas
Before an immigrant is eligible for employment in the U.S., they need to secure the proper visa. Permanent residents may receive immigrant visas, commonly referred to as green cards. Workers with green cards face very few restrictions in terms of where they can work.
Other types of work visas include EB-1 (priority workers), EB-2 (professionals with advanced degrees or abilities), and EB-3 (skilled and unskilled workers). Each visa type has its own guidelines and restrictions, so it is essential your worker secures the correct one.
Employment eligibility (Form I-9)
U.S. employers are required to verify that each new employee is legally eligible for employment at the time of hire. They are required to keep proof of this eligibility to maintain legal compliance. The document used to prove employment eligibility is Form I-9. On this form, legal workers fall into one of four classes: U.S. citizens, noncitizen nationals, lawful permanent residents or aliens authorized to work.
Small businesses must be aware of E-Verify, a federal system designed to confirm whether job applicants are legally seeking work in the U.S. The system is available for employers across the U.S., but individual states determine requirements for its use. Currently, only nine states require E-Verify for all new hires, but 13 others require use of the service for certain positions, such as public contractors and subcontractors.
While mandatory E-Verify for every new hire across the country is currently just a possibility, the need to validate employment eligibility is more important than ever for small businesses. U.S. Immigration and Customs Enforcement workplace actions against employers nearly quadrupled from 2017 to 2018, and it rose another 10% from 2018 to 2019, putting all employers at greater audit risk than ever before.
Consequently, proper management of Form I-9, and E-Verify where applicable, is critical for businesses of all sizes. Several technology solutions and third-party services are available to help you automate these processes and maintain audit trails.
How to ask for work authorization
It's important for small businesses, especially those that heavily depend on workers who have legally immigrated into the country, to understand the guidelines around hiring foreign workers and gaining the necessary authorization. Although asking for the proper work authorization may seem tricky, there are verification forms that simplify the process and outline what documents a prospective employee needs to prove work authorization.
Every new hire must fill out Form I-9 and present acceptable documents, which are broken up into three lists, that prove their identity and authorization to work. This can include a List A document, like a U.S. passport or permanent resident card, or a combination of a List B document (e.g., driver's license, school ID card with a photograph, or U.S. military card) and a List C document (e.g., Consular Report of Birth Abroad or certificate of birth abroad issued by the U.S. State Department). Ask the new hire to present the acceptable documents during the new-employee orientation process.
If an applicant doesn't have authorization, what should you do?
If the worker you want to hire isn't authorized to work in the U.S., you may be able to help them get authorization, but be warned that it can be an expensive and lengthy process. For example, to get a foreign worker an employment-based green card, you need to go through several steps like completing the PERM process, obtaining approval of the I-140 petition, and obtaining approval of the I-485 application.
A green card is not the only option for authorizing a foreign worker for legal employment. Here are a few other certification options you may want to consider while waiting to sponsor your workers' green card:
- L-1 visa (for intracompany transferees)
- R visa (for religious workers)
- P-1 visa (for internationally recognized athletes or entertainers)
- O-1 visa (for extraordinary workers)
- E-1 and E-2 visas (for supervisory, executive or specialized knowledge workers)
- H-1B, E-3, and TN visa (for professional workers)
- H-2A and H-2B (temporary labor certification for seasonal workers)
How to find qualified applicants
The historically tight job market, coupled with the current labor shortage, poses a threat to many small businesses' hiring processes. According to the U.S. Bureau of Labor and Statistics, more than 10 million jobs are currently available. Without sufficient in-house HR resources, many small businesses could face competitive challenges as they seek to fill and validate the eligibility of the candidates applying for their open positions. However, tools and services are available to help you find the qualified immigrant job candidates you are seeking.
Follow this five-step process to get started:
1. Educate yourself.
Education on current regulations and processes is a critical first step. Many states provide resources and training for HR managers. With this training, you will also need to obtain the necessary certification from the U.S. Department of Labor.
2. Create a detailed job description.
An accurate job description is critical to finding the best applicant for any job, as it outlines the essential functions, responsibilities and skills for an open position. When you create a job description, you get a better idea of the exact type of employee you need to hire. Job descriptions can be especially important when hiring immigrant workers because some worker visas are only eligible for specific types of work.
3. Post on applicable job sites.
Although you can (and should) post your job openings for immigrant workers on standard job sites like Indeed, Monster and ZipRecruiter, you should also seek out other international job sites that cater to finding foreign workers. For example, you can find qualified applicants on Careerjet, CEO Worldwide or USponsor Me. Searching a variety of job boards will give you access to a broader pool of skilled immigrant workers.
4. Interview qualified applicants.
When you find a few qualified applicants, move forward with the interview process. Keep in mind that your job applicants may reside in other countries, so you will likely need to conduct virtual interviews.
5. Hire and onboard the best candidate(s).
After you interview the qualified candidates, select the best fit and go through the employee hiring and onboarding process. Have the new hire complete their I-9 form and present the proper documents to prove their employment eligibility when they are onboarded.
Jason Fry contributed to the writing and reporting in this article.