Employment Laws for HR: Hiring Non-US-Citizen Workers

Posted Wednesday, September 13th, 2017 by Debbie Lamb, Sterling Talent Solutions

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Employment Laws for HR: Hiring Non-US-Citizen Workers

It is a time of considerable change for the process of immigration. Non-US Citizen Workers has been a much discussed and debated topic over the last few years. President Trump has brought the topic to the forefront during his campaign and most recently with his travel ban declaration and the recent announcement of the DACA program. In President Trump’s February 28th speech before Congress, he said, “Protecting our workers also means reforming our system of legal immigration. The current, outdated system depresses wages for our poorest workers and puts great pressure on the taxpayer.” These statements and administration procedures have brought radical changes to the immigration system, which in turn affects employment of Non-US-citizens.

Sterling Talent Solutions is producing the “HR Essentials” webinar series with employment law experts who have spoken on HR compliance matters such as discrimination in the workplace and adverse action compliance and provide best practices with actionable takeaways which companies can implement immediately. This month’s webinar, “Employment Laws for HR, Part 3: Hiring Non-US-Citizen Workers“, presented by Leon Rodriquez of Seyfarth Shaw LLP, explains the key compliance considerations for HR when hiring Non-US-citizens. Rodriquez is the former Director of US Citizenship and Immigration Services.

Issues Affecting Employers for Foreign Nationals

The most important issues affecting employers for foreign nationals are:

  • Work authorization compliance
  • Non-Immigration Visa Issues, particularly H-1B
  • National Security Considerations are affecting travel and availability of foreign nationals

Work Authorization Issues

Form I-9

Work authorization is a critical component for Non-US-citizens. The US requires documentation, Form I-9, that an employee is permitted to work in the US. Form I-9 is used to establish both identity and employment authorization for individuals (citizens and non-citizens) hired for employment in the United States. All employers must accurately complete and retain Form I-9, the employment eligibility verification form, for every person hired for employment on or after November 6, 1986 in the United States. The form can be completed electronically or on paper.

There can be challenges with the I-9. Since the beginning of the year, there have been two changes to the Form I-9, including changes to phrasing, electronic formatting of the form and the list of the acceptable documents. There can be atypical and fraudulent documentation as well as E-Verify/Electronic I-9 issues. It is crucial to review the Form I-9 Handbook for Employers: Guidance for Completing Form I-9 (M274) to understand the fine points of filling out the form to avoid errors such as failure to complete Section 1 by the first day or Section 2 by the third day, putting the wrong date of birth or social security number, having invalid documentation or putting the wrong citizenship status.

DACA-Deferred Action for Childhood Arrival

DACA is a policy launched in 2012 which provides deferred deportation and work authorization for unauthorized individuals who come to the US. This predominately relates to the hundreds of thousands of individuals who were brought to the US by parents when they were children. Trump put this group in the national spotlight with his recent announcement to cut the DACA. According to the New York Times, President Trump ordered an end to the Obama-era program that shields young undocumented immigrants from deportation, calling it an “amnesty-first approach” and urging Congress to pass a replacement before he begins phasing out its protections in six months. The approval of the DREAM Act by Congress would provide a remedy and path to a green card for the 800,000 people that are part of the DACA population.

If the act isn’t passed by March 2018, the young adults who qualify for the program will become eligible for deportation. DACA recipients will begin to lose their work authorization almost immediately and daily there after until 2019. DACA recipients whose work authorization ends on or before March 5, 2018, would be able to renew their two-year period of legal status if they apply by October 5, 2017. If Congress doesn’t act by March 2018, these young adults could face deportation. If their work authorization expires, per the law, they must be let go from their place of employment. DACA recipients (also called Dreamers) are not protected under US Anti-discrimination laws. Employers will not be given a discrimination violation for firing DACA participants.

H-1B

The H-1B program applies to employers hiring non-immigrant workers for specialty occupations which require highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. The Department of Labor states, “The law establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of the non-immigrant workers, as well as to protect the H-1B non-immigrant workers. Employers must attest to the Department of Labor that they will pay wages to the H-1B non-immigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment – whichever is greater.”

There is a new federal government approach to foreign national workers with H-1B status. Department of Labor Secretary Acosta stated in a June speech that the Department of Labor is safeguarding working conditions in the US and the agency has begun to prioritize and publicize the investigation and prosecution of entities in violation of visa programs.  The RAISE Act would replace the current permanent employment visa system with a skills-based points system. The system would prioritize those immigrants who are best positioned to succeed in the US and who could expand the economy. The impact if this act becomes law, is that it will reduce the overall immigrant level, and as a result some industries and companies will encounter staffing difficulties and there could be an impact on economic growth.

Legal Guidance

Always review with legal counsel any concerns about Non-US-citizen workers and the changing laws that affect employment. Find out more about immigration laws for Non-US-citizens and how they affect the workplace by downloading the OnDemand version of “Employment Laws for HR, Part 3: Hiring Non-US-citizen workers.

Please Note:

Please note that Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.