Hiring International Workers

Foreign workers bring new perspectives, skills, cultural diversity, and manpower to American workplaces. New global markets require global talent, a global team, and a global workforce. However, hiring international workers can bring legal headaches.  

Legal considerations will vary based on the size of your business, your industry, and the origin, skill level, and immigration status of the workers. For legal advice tailored to your specific business and hiring needs, you should contact an experienced employment law attorney. They will have the best advice and strategy for you. 

Legal Concerns of Hiring Foreign Workers

A combination of labor laws, employment laws, and immigration laws governs the hiring and employment of international workers. These laws should be your top concern throughout the hiring process. 

First, you typically need to receive certification to hire international workers through the U.S. Department of Labor’s (DOL) Foreign Labor Certification Program.

The workers must have the right to enter the country. As the employer, much of the responsibility of obtaining the appropriate work visas or permits for international talent will likely fall on your shoulders. This can be a time-consuming process and usually starts with identifying the appropriate visa category for the prospective employee. The most common types of work visas include: 

• H-1B visa for specialty occupations
• L-1 for intracompany transfers
• H-2A for seasonal and temporary agricultural workers
• H-2B for seasonal and temporary non-agricultural workers
• O-1 for individuals with extraordinary abilities or achievements

The application process typically requires submitting a labor certification, petitioning the U.S. Citizenship and Immigration Services, and confirming that prospective employees apply for the right visa at the U.S. embassy in their home country. You will also need to verify the work eligibility of all prospective employees through the Form I-9 process. This form is something you already do for all employees. It can be more time-consuming with international workers. 

If you fail to comply with these laws and regulations you and your business could face serious penalties and fines. Even mistaken misclassifications can result in penalties for U.S. employers.

Considerations for Different Types of Workers 

Legal concerns, considerations, and regulations can vary significantly based on the type of worker you are hiring. These considerations include: 

• Skilled workers: Visa categories vary for employees in highly specialized fields, like IT, health care, and engineering. The distinction between unskilled, skilled, and highly skilled can be difficult to understand. Describing what makes skill sets sufficiently unique to warrant hiring an international worker can be time-consuming and highly nuanced. Similarly, the difference between an H-1B and O-1 visa can be a highly nuanced and document-intensive process.
• Seasonal workers: If your business has seasonal demands, you will need to engage in the process of obtaining H-2A and H-2B visas.
• Executive and managerial transfers: If your company is an international one, you may seek to transfer workers between offices. In this case, you will need to apply for an L-1 visa. Note that eligibility requirements for an L-1 visa will depend on the country or countries in which your business has offices and the nature of the work of the proposed transferee.
• Remote employees: Even a remote foreign employee who is working full-time may need certain sponsorship or documentation to do remote work for your American company.

Each category has specific requirements and limitations. An experienced employment law attorney will help you understand the distinctions, avoid pitfalls, and help you comply with all the laws. 

Other Considerations for Hiring International Workers

Beyond the legal requirements, there are several other factors to consider when hiring foreign national workers: 

• Company culture and cultural integration: You will likely need to update policies, modify existing protocols, and make other accommodations so the new workers feel welcome and your U.S. workers do not feel threatened or displaced. You may also need to provide current workers with training on how to foster inclusivity and not violate state and federal discrimination laws.
• Language: You may need to translate employee manuals and signage. Onboarding new employees — especially if the new employees are eligible for employee benefits — can be especially challenging.
• Relocation support: Whether the new workers aim to take permanent residence in the U.S. or stay temporarily, you may need to offer support for relocation and housing if you provide those benefits to American workers. 

How an Employment Lawyer Can Help 

Whether you are working alone or whether you have a dedicated human resources department to assist you, an employment lawyer with experience representing employers will give you valuable support. They can ensure your business complies with relevant laws and regulations, visa applications, withholding the proper state and federal taxes, draft and negotiate contracts with foreign workers, and provide ongoing support when laws change.

The benefits of hiring international employees are many. So are the legal concerns and considerations. Contact an experienced employment lawyer as you begin the process to make sure you are following the law and able to grow your company the way you want.