U.S. employers may in certain limited situations hire foreigners to work for them. An employer might have identified a worker who is overseas and wish to hire him to work in the U.S. Or the employer may have identified a foreigner who wishes to work and is already in the U.S.
Depending on the nature of the position and the skills of the individual, as well as the person's immigration status, the employer will need to maneuver some complicated procedures. The employer may choose between a number of immigrant and non-immigrant visas to accomplish the objective.
Hiring foreign workers already in the U.S.
In this situation, the employer should not hire the person unless the person has a work permit of some kind. There are some non-immigrant visas that allow foreigners to work in the U.S. The most common situations involve people who entered under student visas who need to work part-time while in school and students at the completion of their studies.
Alternatively, a person lawfully in the U.S. may qualify for a temporary work visa. Here, the employer may petition for the worker through the INS and seek a change of status enabling them to work. The employer must be careful not to hire the person until the requests have been approved by the INS.
People might obtain work permits for other reasons - e.g., because they are seeking asylum protection in the U.S. or because they are applicants for permanent residence.
Determining whether a person has permission to work and hiring qualified foreign workers are complicated tasks. It is best for an employer to consult with an experienced immigration lawyer.
Anti-discrimination
An employer may not intentionally choose a U.S. worker over a foreign worker who has permission to work. An employer, however, may choose a U.S. worker over the foreign worker where the two are equally qualified. An employer must also be careful not to ask a person for more documents than are required under the statute and regulations.
Confirming employee legal status
All employers must require all of their workers (including U.S. citizens) to complete a questionnaire (INS Form "I-9") to determine whether they have permission to work in the U.S. The questionnaire asks for a picture ID and a passport, birth certificate, or social security card, or proof of lawful permanent resident status, or an INS work authorization permit. The employer is required to keep the INS questionnaire and make it available to the INS upon request.
Intracompany transferees: the "L-1" visa
The "L-1" intracompany transferee visa enables companies with at least one office in the United States and one office in another country to transfer important employees into the United States. For some employees, the visa can be valid for 7 years.
No college degree is required for this visa (unlike the H-1B visa). The applicant must have worked for the company for at least a year as a manager or executive or in a position requiring specialized knowledge, and must be coming to the United States to work for the same company in a similar position.
The L-1 visa is available if either company is the affiliate or subsidiary of the other.
Like the H-1B, the L-1 allows the managers and executives of the company to become permanent residents.
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