Do You Employ Foreign Workers? | DCR Workforce Blog

Do You Employ Foreign Workers?

Do You Employ Foreign WorkersWe celebrate the fact that geographic boundaries are being erased as employers choose to locate their offices across the globe and workers migrate to find suitable occupations. These changes require both employers and employees to be aware of the laws and regulations which govern such relocations.

This topic is vast and encompasses a great deal, but we will keep it simple here by focusing on employing foreign workers in America. The United States does not condone the violation of its labor laws, by anyone, on its soil. Just ask Indian diplomat Devyani Khobragade, who is facing visa fraud charges for having falsified the payment information of her domestic help brought in from India to New York. So, it is necessary for employers to toe the line, even when they employ foreign nationals who are willing to accept paltry wages and poor working conditions.

Let us look at some of these requirements:

  • With each new hire, it is necessary for an employer to file Form I-9, which verifies the employee’s eligibility to work in the United States. After verifying the worker’s documentation, I-9 forms need to be kept on file for 3 years from the date of hiring a worker, or for one year after the relationship ends (whichever is later). These records will be required in the event of a routine audit conducted by the U.S. Immigration and Customs Enforcement (ICE) agency to ensure that employers are properly completing and retaining I-9 forms, and that employee information on I-9 forms matches government records.
  • Labor laws expect US employers to provide foreign workers who come into the United States –either temporarily or permanently – with on wages and working conditions which meet all government standards and regulations.
  • The Immigration and Nationality Act (INA) allows U.S. employers to hire foreign workers on a temporary or permanent basis to perform certain types of work provided they can certify that these foreign workers are filling a need for which there are an insufficient number of qualified U.S. workers available. The INA severely restricts the number of foreign workers who can accept positions in the U.S. under this regulation.
  • The INA also protects all work-authorized individuals from national origin discrimination, unfair practices during the employment eligibility verification process, and from retaliation.
  • When verification efforts of an employee’s W-2 form receives a ‘no match’ response, the worker does not need to be immediately terminated. However, to continue with the employment relationship the employer and employee must follow the safe harbor procedures specified by ICE – which we shall discuss in another post.
  • While the employee chooses the documentation that would be submitted with an I-9; an employer needs to be careful to not incur any charges of illegal discrimination against any class of worker over another due to their citizenship status or country of origin.

All these legal requirements try not to disturb the delicate balance between fulfilling the need of employers to recruit the right talent, and protecting the working conditions and wages available to all American workers.

While most feel that the regulations in place to protect the rights of workers in America, may question whether enforcement of these laws is sufficient to serve as a deterrent to those who would take advantage of foreign workers for personal gain. Recently, ‘Electronics for Imaging’, a multinational corporation, brought eight workers from India to install computer systems in their offices, paying them the equivalent of $1.21 an hour in Indian rupees (plus their regular salaries back home). These workers were required to work 120 hours a week at no extra pay! The company also admitted that it somehow “overlooked the fact that even foreign workers will have to be paid by local American standards”! When found to be in violation, it cost the company $3500 in fines. The company must also pay nearly $40000 in owed wages to each of the workers. Many find this to be too light a punishment.

With elections less than a week away, many politicians are running on a platform that includes fair wages and working conditions for all workers. Many speak to the new state legislations that they would champion. The question seldom asked is, “What will you do to ensure that the existing legislation is aggressively enforced?”

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.