Hiring Foreign Workers? Welcome to America

As globalization drives students, workers, and

entrepreneurs to havens of opportunity and prosperity, the old saying

about the United States being a 'melting pot', or 'salad bowl', or even

'mosaic of diversity', still stands true, despite the current economic

slump.

When American short track speed skater Allison Baver made

the following comment, she touched on the commonality of cultural

diversity that is omnipresent in just about any place of business in

the USA.

'I noticed it traveling with our team.

We’re the only team that has coaches from three other countries and

athletes that are all different in terms of our diversity. Look at our

team as a whole. It is the United States. . . . It’s a melting pot.'

Truth

be told - if the U.S. is a melting pot, then the regulations and laws

that govern the hiring of foreign workers are a veritable casserole of

certification requirements, application procedures, and tax

implications.

Hiring Foreign Workers - Get Your Arms around the Law

As

a British expat who immigrated to the U.S. more than ten years ago,

I’ve had my fair share of encounters with the federal laws that govern

the temporary and permanent employment of non-resident and resident

aliens in the U.S.

What struck me during my transition from

alien to resident alien to permanent resident was how little knowledge

of foreign worker employment laws my employer had, despite being a

large global enterprise.

So if the large corporations struggle

with the law, where does the small business owner start to build an

understanding of the process of hiring foreign workers?

The

good news is that there are many guides and online resources that can

help employers understand and comply with foreign worker laws.

Below

is a summary of the key aspects of foreign worker employment law and

links to information and tools to support your small business’ efforts

to comply with these laws.

• Certifying a Foreign Worker

  - The Department of Labor (DOL) should be your first stop for gaining

  permission for foreign workers to work in the U.S. To achieve

  certification for a potential employee, businesses must demonstrate

  that there are insufficient qualified U.S. workers available and able

  to perform the work at wages that meet or exceed the prevailing wage paid for that occupation.

This page describes

the DOL’s certifications issued for permanent and temporary employment

under the following programs: Permanent Labor Certification, H-1C

Nurses in Disadvantaged Areas, H-2A Temporary Labor Certification

(Seasonal Agricultural), H-2B Temporary Labor Certification

(Non-agricultural), and D-1 Crewmembers Certification.

• Petition for a Visa - Once you receive certification or approval by the DOL, the next step is to petition the U.S. Citizenship and Immigration Services

  for a visa on behalf of the foreign worker. The worker will also need

  to establish that they are admissible to the U.S. under the Immigration and Nationality Act.

There

are a range of guides covering the application process, compliance,

record-keeping and contact information for all types of foreign worker

employment status (H-2A, H-2B, H-1B, H-1B1, D-1 and so on) on the DOL

site here.

• Foreign Worker Taxation Considerations

  - Most foreign workers, whether temporary or permanent are required to

  pay U.S. taxes. However there are some exceptions that you need to be

  aware of, these include:

1. Foreign Agricultural Workers

- Temporary foreign agricultural workers on H-2A visas are exempt from

U.S. social security and Medicare taxes, whether they are resident

aliens or nonresident aliens.

For information on these exceptions, check out the tax information here.

Additional Resources

Small Business Guide to Hiring Foreign Workers -

This resource from Business.gov provides information from the U.S.

Department of Labor describing how to comply with federal labor

regulations regarding the hiring and employment of foreign workers.

About the Author

Caron Beesley is a small business owner, a writer, and marketing communications consultant. Caron works with the SBA.gov team to promote essential government resources that help entrepreneurs and small business owners start-up, grow and succeed. Follow Caron on Twitter: @caronbeesley