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A tough labor market for American workers can create a climate of resentment when citizens feel that foreigners are taking their jobs. Nevertheless, some employers will actively pursue hiring foreign workers for different positions, even if the jobs are on a temporary basis. To do this legally, there are different guidelines that employers must follow to avoid penalties and loss of productivity in filling temporary jobs.
Contrary to beliefs of American workers, the federal government has requirements regarding hiring foreign workers for U.S. jobs. Basically, U.S. employers can hire foreign workers only after they prove that doing so does not negatively affect employment opportunities for U.S. citizens.
Foreign Labor Certification Programs in the United States
Generally, U.S. employers can apply through foreign labor certification programs to hire temporary foreign workers to fill jobs that are essential to the nation's economy. First, employers must demonstrate that there is an insufficient supply of American workers who are both available and willing to perform certain jobs at the prevailing wage for the positions.
These programs were designed to make sure that admitting foreign workers into the country on a temporary basis does not have an adverse affect on wages, opportunities and working conditions of U.S. citizens.
Immigration through temporary employment is a complex process that usually involves more than one government agency. The U.S. Citizenship and Immigration Services, Department of Labor, State Department and state labor departments are often involved throughout the process.
Each agency that is involved has an approval responsibility before foreign workers are allowed into the country. Generally, DOL approves the labor certification application. Next, it is the employer's – not the employee-s – responsibility to petition CIS for a work visa. It is important to note that approval by DOL is not a guarantee that CIS will issue a visa. Typically, the State Department issues the immigrant visa number to the foreign worker as permission to enter the country. Additionally, there are provisions under the Immigration and Nationality Act that must be met as proof the worker can be admitted into the U.S.
General Guidelines of the Process
There are five unique foreign labor certification programs that come with their own set of guidelines: Permanent, H-1B, H-2A, H-2B and B-1. However, there are some similar requirements that U.S. employers must follow before receiving a labor certification. In general, employers must complete these five basic steps for each program:
1. Ensure the position meets qualifying criteria based on the requested certification.
2. Complete the ETA form that is relative to the requested certification. Supporting documentation may also be required such as a job description and foreign worker's resume.
3. Submit a completed ETA form to regional or national DOL designated to handle the application.
4. Guarantee that the wage either equals or exceeds the prevailing wage for the temporary job.
5. Ensure compliance issues to maintain the certification is fully understood.
Once everything is completed, the employer will be notified of approval or denial. Although the employer is responsible for initiating the foreign labor certification process, the foreign worker should understand his/her obligations and procedures based on the nature of the work visa that is requested.
The application is reviewed by the Chicago National Processing Center to check errors that could prevent certification approval. The Chicago NPC also reviews appropriate forms and documentation to make sure the employer is in compliance with certification criteria. A final determination is made by the Chicago NPC on whether to certify, deny or request further information.
If it is determined that the employer failed to comply with one or more criterion, the employer will receive a Request for Further Information. This may occur even if the employer completed all attestations and assurances. In addition, any notification issued by the Chicago NPC will include next steps for the employer to receive full certification.
After receiving the employer's response to a RFI, Chicago NPC reviews the information and the original application before issuing a final determination within seven business days. The final determination may also come within 60 days of the employer's date of need if that date is later than the original application date.
Program Classification of Foreign Workers
Approval of a foreign labor certification application grants non-U.S. citizens the right to remain in the country on a temporary basis for work. These are known as nonimmigrant visas where some individuals may receive to stay in the U.S. to attend school or visit relatives. For most nonimmigrant visas, there are no numerical caps. Currently, there are nearly 26 different types of nonimmigrant visas for temporary stay.
H-1B: Temporary Professional Workers
The H-1B visa is for individuals who come to the U.S. for specialty occupations. Generally, these include professional positions that require at least a bachelor's degree. A combination of appropriate work experience and education may also qualify. Approval for a visa in this class always requires a prearranged job that may also be granted on a permanent basis.
In addition to application materials, the employer must also file an attestation with DOL that the foreign worker will receive either the prevailing or actual wage for the position, whichever is highest. Initially, the visa is granted for three years; a second three-year extension is possible. After staying in the country for six years under the H-1B visa, the foreign worker is required to live abroad for one year before being granted a different visa.
H-2A: Temporary Agricultural Workers
H-2A visas are issued under the H-2A temporary agricultural program for employers who expect a shortage of domestic workers. Essentially, employers are granted permission to bring nonimmigrant foreign workers to the country for temporary agricultural labor. Employment requirements must be for seasonal work that is tied to specific times of the year.
For example, the annual growing season might require labor levels that are above necessary staffing needs for ongoing operations. Foreign workers are hired on a temporary basis to fill positions that cannot exceed one year in duration. Provisions for a longer period may apply under extraordinary circumstances.
H-2B: Temporary Nonprofessional Workers
Nonprofessional temporary foreign workers are classified as skilled and unskilled labor that do not have a bachelor's degree. Typically, foreign workers in this classification are performing seasonal work for prearranged employment. The U.S. DOL must approve the certification that American workers were not available to perform the jobs. Initially, foreign workers are granted a one year visa. If necessary, the H-2B visa can be extended for a maximum of three years.
B-1: Visitors for Business
Like the other visas, a B-1 foreign worker cannot displace an American worker for a job on U.S. soil. In addition to working for U.S. employers, foreign workers in the country under this visa may also conduct business for a foreign employer. B-1 visas are issued for one year and can be renewed as necessary until the purpose of the trip is completed.
Compensating Foreign Workers
There are also general regulations that employers must follow for compensating foreign workers. Essentially, wages listed on the foreign labor certification application must represent the prevailing wage rate for the job classification. A prevailing wage is the average wage that all workers receive in the requested occupation category. Following prevailing wage regulations does not prevent employers from paying foreign workers more that the required rate.
In addition to paying the prevailing wage, employers must also comply with related employment laws and regulations. Additional obligations may apply if the employer is applying for a H-1B Specialty Workers visa for professional positions. The same is the case for a H-2A Temporary Seasonal Agricultural Workers visa. Failing to comply with regulations that are detailed on the U.S. DOL foreign labor certification website could lead to penalties and legal action.
Investigation of employer misrepresentation is the responsibility of the Wage and Hour Division of DOL. The agency determines if the employer failed to comply with specific program requirements of the visa programs and the Fair Labor Standards act.
Extending Stay for Temporary Foreign Nonimmigrant Workers
Where applicable, employers can extend the stay of temporary foreign nonimmigrant workers. Under certain circumstances, foreign workers can apply for an extension of stay. There are a number of requirements, however, that will apply based on the type of visa and the circumstances under which the extension is requested. Not every category of nonimmigrant worker visas are eligible.
Employers that anticipate shortages in workforce needs can take advantage of foreign labor certification programs. Most of these programs require substantial lead time and may include a lot of paperwork. Therefore, employers should understand the application process and legal requirements well in advance of needing to hire workers.
One of the biggest risks of hiring foreign workers is bringing an undocumented worker on board. Some individuals looking for better wages and working conditions may enter the country illegally and submit false documents. Therefore, employers must make sure they are hiring foreign workers who have gone through the legal process to work in this country. This helps to prevent legal wrangling that can interfere with running a successful business.
On the positive side, hiring foreign workers offers many advantages to U.S. employers who cannot fill the positions with American citizens. There are benefits realized over time that does more than simply fill labor gaps.
For starters, U.S. employers can increase their competitiveness in a global marketplace. Most foreign workers possess skills and talents that strengthen employers' position within respective industries.
If employers want to develop new markets, hiring foreign workers – even for temporary jobs – gives them some exposure. Foreign workers speak different languages and bring knowledge of other cultures into the workplace that can be used to compete in those markets.