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Keeping It Legal: Do’s & Don’ts of Hiring Foreign Workers
Contractors can still hire temporary foreign-born help, but the current immigration climate requires a detailed knowledge of labor procedures
Maria M. Cordon, PC
Attorney-at-Law
Houston immigration lawyer Maria Cordon owns a boutique firm representing businesses and individuals in immigration, customs and border protection matters. She has been in practice since 1994 and is board certified in immigration and nationality law by the Texas Board of Legal Specialization.
Cordon is a magna cum laude graduate of Duke University and earned her law degree from Southern Methodist University Law School. Cordon is admitted to the U.S. District Court, Southern District of Texas, U.S. Court of Appeals for the Fifth Circuit and the Court of International Trade.
Website: www.cordonlaw.com |
It happens all the time. A contractor is awarded a large contract but finds he does not have enough workers to perform the job. He advertises the position, asks around the community and often finds there are no workers available. Finally, as a last resort, he considers importing qualified, skilled workers from outside the U.S., but he is told it is practically impossible to import such workers. So, as a matter of survival, he ends up violating the law by hiring undocumented workers and paying them either under the table or through phony subcontractor companies. Something is wrong with this picture.
In 2006 there were a total of 2.5 million foreign-born people employed in the construction industry. Contractors who decide to solve short-term labor needs by legally importing labor from abroad will not only benefit themselves but the labor market as a whole. They will not need to continually operate in violation of the law by hiring undocumented workers.
Labor Cycle
Instead, they can bring these same workers into the system regardless of whether they come from Mexico or Canada or Europe use their valuable services for several months each year, and then let them go home for a few months until the next labor cycle. At the same time, these contractors will have effectively solved their short-term labor problems and will no longer have to turn down or lose valuable contracts because of a lack of workers; they also will not have to pay large fines for failing to complete their jobs on time.
Hiring temporary foreign workers to work in the H-1B and H-2 categories in the U.S. normally requires approval from several government agencies.
First, employers must seek labor certification through the U.S. Dept. of Labor. Once the application is certified, the employer must petition the U.S. Citizenship and Immigration Services for a visa number.
Approval by DOL does not guarantee visa issuance. The U.S. Dept. of State will issue a visa to the foreign worker for U.S. entry. Applicants must also establish they are admissible to the U.S. under the provisions of the Immigration and Nationality Act. Whether businesses are looking to hire unskilled, vocational or professional workers, there are several do’s and don’ts an employer should know.
Positions Must Qualify
| Contractors who decide to solve their short-term labor needs by importing labor from abroad will not only benefit themselves but will also benefit the labor market on the whole. |
Labor certifications for foreign workers are mandated by regulations published by the Code of Federal Regulations. These regulations provide instruction on the processing of applications, period of validity and employer responsibilities. It should be determined if the employment will be temporary or permanent and abide by specifications per occupational category. If the employer asks for requirements that are different or higher than the industry standard, the employer must show business necessity.
Under the business-necessity standard, the employer must establish that the job requirements are reasonably related to the occupation and are essential to performing the job. This requested documentation of business necessity is often required for positions that demand a higher specific vocational preparation. Be aware that the Dept. of Labor often changes the SVP for an occupation from one year to another, and processing times can vary.
| If the employer asks for requirements that are different or higher than the industry standard, the employer must show business necessity. |
The wages to be paid in labor-condition applications and permanent alien labor certification applications must comply with Dept. of Labor regulations. Employers are required to pay 100% of the prevailing wage.
The prevailing wage is determined by governmental surveys, which typically note four levels of wages proportionate to the experience, education and supervisory level of workers. Employers that disagree with their prevailing -age determination can provide supplemental information to the State Workforce Agency.
Employers and Compliance
Employers should be aware that in filing to employ foreign workers, they are obligated to comply with all employment-related laws and regulations. In the case of H-1B Specialty (professional) Workers, additional obligations also apply. Failure to comply with the established laws and regulations may result in penalties and possible legal action.
The employer could receive a written “no-match letter” from the Social Security Administration stating that the combination of name and Social Security number submitted for an employee does not match agency records.
Employers should check their records for recording errors. The next step is to check with the employee to verify that the information is correct. Employees need to resolve discrepancies with Social Security. The good news is that when your company petitions for your foreign workers, you know that they truly are eligible to work in the U.S.
The construction industry often does not attract sufficient numbers of qualified job seekers, and employers will need to hire foreign workers to fill these increasing gaps. These employers need to stay abreast of the changing immigration laws to stay in compliance as they seek to grow and expand their businesses.
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