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Employment Law

Hiring Foreign Workers

Employers experiencing a shortage of qualified employees may seek to hire applicants outside of the United States. In order to legally hire foreign workers, employers must obtain employment authorization from the United States government. Employers should be aware that the process of hiring foreign workers is time-consuming and may last from several months to a number of years.

Overview of the Hiring Process

Employers interested in hiring foreign workers are first required to obtain foreign labor certification from the U.S. Department of Labor (DOL). Once the employer is certified, the employer must engage in a regulated hiring process. The employer must then petition the U.S. Citizenship and Immigration Services (USCIS) on behalf of the employee for a visa. If the visa application is approved, the foreign worker may become lawfully employed in the United States.

Obtaining Foreign Labor Certification

The U.S. Department of Labor's Division of Foreign Labor Certification (DFLC) provides labor certification to employers seeking to hire foreign workers in the United States. Certification ensures that there are no qualified U.S. workers available to fill the open position and that hiring a foreign worker will not upset the wages or working conditions of similarly employed U.S. workers.

The DFLC offers the following six types of employment certifications: (1) Permanent Labor Certification; (2) H-1B Specialty Workers; (3) H-1C Nurses in Disadvantaged Areas; (4) H2-A Temporary Labor Certification (Seasonal Agricultural); (5) H2-B Temporary Labor Certification (Non-Agricultural); and (6) D-1 Crewmembers Certification.

Certification applications require the employer to describe in detail the education, skills and experience necessary to be eligible for the job, as well as the duties that the potential employee will be required to perform. Once the application is filed, either the State Employment Security Agency (SESA) or the state's Foreign Labor Certification Unit (FLC) will review the application. SESA reviews applications for permanent labor (issued through an electronic labor certification system known as PERM - Program Electronic Review Management), while the FLC reviews applications for temporary employment.

After the employer has submitted the application, the appropriate agency works with the employer to develop an advertisement for the position. Employers are required to interview all candidates that meet the minimum requirements set forth in the advertisement. After interviewing and evaluating all candidates, the employer must submit a recruitment report summarizing the applications received and the candidates interviewed. SESA or the FLC will then submit all materials to the DFLC for approval. A DFLC certifying officer will review the materials and issue a final determination granting or denying the application.

Securing a Visa

Once the application for foreign labor certification is approved and an individual has been hired to fill the position, the employer must secure a visa for the new employee. Different types of visas are available to employees depending on whether the employee seeks permanent or temporary employment in the United States.

Immigrant Visas

Immigrant visas are sought by employees who wish to live and work permanently in the United States. In order to obtain an immigrant visa, the foreign worker's employer is required to file a Petition for an Alien Worker (Form I-140), with the USCIS. If the form is approved, the state department provides the worker with an immigrant visa number.

There are four categories of employment-based immigrant visas:

  • EB-1. EB-1 visas are issued to priority workers. Priority workers are foreign nationals with extraordinary abilities in education, business, athletics, science or the arts; outstanding foreign professors or researchers; and foreign managers and executives subject to international transfer to the United States.
  • EB-2. EB-2 visas are available to professionals with advanced degrees or persons of exceptional ability. Such individuals include foreign nationals with exceptional abilities in the sciences, arts or business; foreign nationals with advanced professional degrees; and qualified alien physicians serving in disadvantaged regions of the United States.
  • EB-3. EB-3 visas are issued to skilled or professional workers. Skilled or professional workers include foreign national professionals with a bachelor's degree; foreign national skilled workers or unskilled workers.
  • EB-4. EB-4 visas are available to special immigrants. Special immigrants are foreign national religious workers, employees and former employees of the U.S. government.

Because only a limited number of immigration visas are issued each year, visas are distributed in order of preference. EB-1 visas are the most preferred, followed by EB-2 visas, etc.

Non-Immigrant Visas

Non-immigrant visas are sought by workers who do not wish to live permanently in the United States. Employers hiring foreign workers on a temporary basis are required to file an I-29 Petition, as well as an additional supplement with the USCIS. Once an I-29 Petition is approved, the worker is required to file a visa application with the American consulate in their home country.