Hiring foreign workers is similar to hiring U.S. citizens. As long as a foreign worker has work authorization, the hiring process will be the same as hiring a U.S. citizen. The process will be different if the worker does not have authorization to work in the United States.Here are the things you need to know when hiring foreign workers.
How to hire foreign workers
You must make sure all employees are authorized to work in the U.S. This applies to employees of all national origins, including U.S. citizens.
To verify an employee’s work authorization, you will use Form I-9.
On the first day of employment, an employee must fill out Section 1. The employee will list their personal information in this section, including their name, address, date of birth, and citizenship or immigration status.
After the employee completes Section 1, you will fill out Section 2. You must complete this section within three business days of the employee’s first day.
For Section 2, you will examine and record the employee’s identification documents. Lists of acceptable documentation can be found on Form I-9. You must either examine one document from List A or one document each from Lists B and C. The employee gets to choose the identification they show you. You cannot require the employee to provide a specific form of identification.
Once you examine and record the employee’s identification, you will sign Section 2. By signing, you certify that the documents appear to be real and the employee is authorized to work in the U.S.
You will not send the completed Form I-9 anywhere. You only need to keep it in your business’s files. When the employee no longer works for you, you must keep the employee’s Form I-9 for either three years after the hire date or one year after the date employment ended, whichever is later.
There is a federal database you can use to verify if your employees are authorized to work in the U.S. The database is called E-Verify.
E-Verify is voluntary for most employers, but federal and state laws require some employers to use the database.
With E-Verify, you can compare an employee’s Form I-9 to U.S. Department of Homeland Security records. If there is a discrepancy in the records, you will immediately know.
If you use E-Verify, you should use it to check the work authorization of all employees when they first start work at your business.
Foreign workers without work authorization
You found the perfect person for an open position. But, you discover a problem: they are not authorized to work in the U.S.
You might be able to help a foreign worker gain work authorization. Gaining work authorization is a long and complex process, but you can sponsor a worker. You should be aware that sponsoring a worker does not guarantee they will gain work authorization.
A foreign worker can gain lawful permanent residence, often called a green card.
Foreign workers can also gain temporary work visas. Two common visa types include the H-2A program for temporary agricultural workers and the H-2B program for temporary non-agricultural workers. There are many other types of temporary visas. Workers can sometimes use a temporary visa as a stepping stone until they can gain lawful permanent residence.
The categories for visas are narrowly defined, so it can be difficult for immigrants to get a visa. The federal government makes the categories narrow on purpose. This helps to protect jobs and working conditions for U.S. workers.
Foreign workers without an SSN
Foreign workers should apply to the Social Security Administration for a Social Security number (SSN) and card. If the worker has applied but does not have a card yet, you should get as much of the following information as possible:
- the worker’s full name
- date of birth
- place of birth
- the father’s full name
- the mother’s full name
- the date the worker applied for an SSN
When the worker receives an SSN, they give you the number.
If you are missing an employee’s SSN when you complete their Form W-2, do not leave the SSN box blank. If you file Form W-2 on paper, enter “Applied For” in the box. If you file electronically, enter all zeros in the box.
Wages and taxes
You must give foreign workers at least the prevailing wage. A prevailing wage is the average paid to all other workers in the same occupation and in the same employment location. You can submit Form 9141 to the U.S. Department of Labor to find out what the prevailing wage is for your employees.
Foreign workers are subject to payroll taxes just like U.S. citizens are. Income is taxed at the same rates as U.S. citizens.
You must send a Form W-2 to the Social Security Administration (SSA) for all employees on payroll. The SSA will check employee names and SSNs against its records. The U.S. Immigration and Customs Enforcement (ICE) agency can check Form I-9.
If either the SSA or ICE finds a discrepancy between employee and government records, the agency will send you a no-match letter.
If you receive a no-match letter, do not retaliate against the employee. If you fire an employee simply because you receive a no-match letter, you can be sued for discrimination.
A no-match letter does not automatically mean the employee is not authorized to work in the U.S. No-match letters simply mean the employee’s information and government records do not match. This could have been caused by an administrative error or a name change.
After you receive the letter, you should act immediately. Read the letter carefully and follow its instructions.
When hiring foreign workers, you need to be careful. You want to avoid doing anything that can be considered discrimination.
For example, workers must fit into one of four categories to work in the U.S.
- U.S. citizen
- noncitizen national
- lawful permanent resident
- alien authorized to work
If you prefer one category of worker over another, this can be considered discrimination.
Other things that might lead to a discrimination lawsuit include:
- preferring workers from a certain country
- firing an employee when you receive a no-match letter
- requiring certain employees to show you specific identification documents
- paying foreign workers lower wages than their U.S. co-workers with the same jobs
To prevent a discrimination case against you, treat your foreign workers the same way you would treat your workers who are U.S. citizens.
Also, you want to avoid discriminating against U.S. citizens. You cannot legally prefer foreign workers over U.S. citizens. However, hiring foreign workers might be your only option. You might have an open position at your business, but there are no U.S. workers who are qualified and willing to do the work.
Important things to remember about hiring foreign workers
Hiring foreign workers might be a similar process to hiring U.S. citizens. Depending on the worker, there might be extra steps, like sponsoring a visa.
No matter the process you go through, here are three takeaways for you.
1. Don’t discriminate. Make sure you treat foreign workers fairly. You should not treat them differently than workers who are U.S. citizens. Remember, you can be sued for discrimination against foreign workers.
2. Stay legal. Make sure you fill out all required forms. Keep Form I-9 on record for the required amount of time. Follow all laws about hiring foreign employees. If you need help, consult a lawyer.
3. Talk to employees. Keep communication open between you and your employees. If an issue comes up about an employee’s work authorization, talk to the employee. Employees should feel comfortable talking to you if they have a problem.
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