In the United States, a nonimmigrant worker is a foreign-born person who is not a permanent resident and is not a U.S. citizen. A citizen of a foreign country who wishes to work in the U.S. must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. Nonimmigrant workers come to the U.S. lawfully on temporary worker classifications. Temporary worker visas are for persons who want to enter the U.S. for employment lasting a fixed period of time, and not considered permanent or indefinite. See workplacefairness.org for more information on nonimmigrant workers.

Visas for temporary workers require the prospective employee – or their employer on their behalf – to file a petition with U.S. Citizenship and Immigration Services (USCIS). Additionally, some temporary worker visa categories require prospective employers to obtain a labor certification or other work authorization from the Department of Labor on the employee’s behalf before filing an I-129 Petition for a Nonimmigrant Worker with USCIS. Labor certifications are explained further below.

Labor certification is required for certain types of work visas – specifically for permanent workers and for temporary non-agriculture workers. Foreign labor certification permits U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. Certification verifies that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing the intended occupation. Labor certification is designed to assure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers. It is up to employers, not the foreign employee, to obtain labor certification for the employee from the Department of Labor. After receiving it, the prospective employee may petition for a work visa with the

The Immigration and Nationality Act prohibits (i) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; (ii) national origin discrimination in hiring, firing, or recruitment or referral for a fee; (iii) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and (iv) retaliation or intimidation. Details about the law prohibiting unfair immigration-related employment practices can be found here.

Citizenship status includes a person’s immigration status. U.S. Citizens, U.S. Nationals, refugees, asylees, and recent lawful permanent residents (LPRs) are protected from citizenship status discrimination. There are two exceptions to this: (i) lawful permanent residents who do not apply for naturalization within six months of eligibility by virtue of their period of residency are not protected; and (ii) an employer may restrict hiring to U.S. citizen only if a law, regulation, executive order, or government contract requires the employer to do so. Further explanation of the types of discrimination can be found here.

The Immigrant and Employee Rights Section (IER) of the Civil Rights Division under the Department of Justice, enforces the anti-discrimination provision of the INA. Individuals who believe they have been discriminated against may file charges with IER and may be entitled to receive back pay and reinstatement, among other remedies. Visit the IER website to report one of these forms of discrimination protected under the act or get more information.

After Immigration and Employee Rights (IER) receives what it deems to be a charge, IER will start its investigation. If IER has not filed a complaint with an Administrative Law Judge (ALJ) within 120 days of receiving a charge, it will send a letter notifying the injured party or representative of their right to file an administrative complaint against the respondent, and indicating whether IER is continuing its investigation. IER will also notify the respondent of its decision to continue an investigation. Once a case is filed, pre-trial matters like discovery, depositions, and pleadings are handled. ALJ decisions are directly appealable to the federal circuit courts of appeals. Settlements or successful adjudications may result in civil penalty assessments, back pay awards, hiring orders and imposition of injunctive relief, where applicable, to end discriminatory practices.

Immigration and Employee Rights (IER) offers two platforms for public education and outreach: (1) IER’s free hotline with multilingual staff, including attorney’s, ready to assist workers, employees, and the public who contact IER; and (2) IER’s free webinars which are hosted regularly to educate employers, workers or other members of the public about the protections and obligations under the anti-discrimination provision. See the Department of Justice website for information on each of these resources.

The U.S. Department of Labor’s Wage and Hour Division (WHD) is responsible for enforcing some of the nation’s most comprehensive federal labor laws on topics including the minimum wage, overtime pay, recordkeeping, child labor, family and medical leave, migrant and seasonal worker protections, lie detector tests, worker protections in certain temporary guest worker programs, and the prevailing wages for government-funded service and construction contracts.

The WHD shares updated statistics about its impact, such as the amount of back pay it secured for workers in various industries and the number of calls it answered in the past year.

Information on filing a complaint with the WHD can be found here.