Noncitizen and other Immigrant Employment
This page pertains to immigration and employment. They provide information for both employers and employees about federal laws, work authorization, eligibility to work in the United States, discrimination concerns, and more. Noncitizen workers covered here include permanent immigrant workers, temporary nonimmigrant workers, student workers, and undocumented immigrants. More information, such as about hiring processes for nonimmigrant workers, is available on the Workplace Fairness website here. View the links and questions below to learn about U.S. employment laws and procedures for immigrants, as well as guidance for employers and employees.
These are some key points employers should know that are explained on this page:
- Employers must always ensure that all their employees are authorized to work in the U.S.
- Employers may need to petition for labor certification on an immigrant employee’s behalf if they intend to hire a person who is not currently in the U.S. and is not a U.S. citizen.
- Employers may not discriminate based on nationality or citizenship, including in the hiring process.
These are some key points employees should know that are explained on this page:
- A visa is required to visit or relocate to the U.S.
- U.S. citizenship is not required to work in the U.S.
- All persons must be authorized to work in the U.S. before an employer may legally hire them.
- There are five types of employment-based visas, and each encompasses different workers.
- Some employment-based visas require an employer to obtain a labor certification on their employee’s behalf.
- Immigrants may travel to the U.S. for either temporary or permanent work, though separate requirements apply.
- Employers may not discriminate based on nationality or citizenship, including in the hiring process.
Legal protections for immigrants in the United States are primarily federal. The main federal laws that protect immigrants are the Immigration and Nationality Act (INA) and the Civil Rights Act of 1964. The INA applies to immigrants generally but includes specific requirements for workers and employers. Title VII of the Civil Rights Act prohibits discrimination based on national origin. These laws are further explained below.
The Immigration and Nationality Act (INA) is the primary federal legislation that directs U.S. citizenship and immigration, including employment. The Immigration and Nationality Act (INA) is the primary federal law regulating immigration to and from the United States. It was enacted in 1952, though it has been amended many times since then. The INA is codified as Title 8 of the U.S. Code. The INA regulates entry to and removal from the U.S., dictates visa requirements and quotas, and more. The INA also encompasses immigrant workers, temporary nonimmigrant workers, and business workers. It authorizes employment-based visas, sets requirements for work authorization, and prohibits employers from discriminating based on national origin or citizenship status.
See workplacefairness.org for information on national origin discrimination.
The Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS), Department of Justice (DOJ), Customs and Border Protection (CBP), and the U.S. Department of Labor (DOL) are a few of the most relevant authorities.
Legal protections for immigrants in the United States are primarily federal. The main federal laws that protect immigrants are the Immigration and Nationality Act (INA) and the Civil Rights Act of 1964. The INA applies to immigrants generally but includes specific requirements for workers and employers. Title VII of the Civil Rights Act prohibits discrimination based on national origin. These laws are further explained below.
The Immigration and Nationality Act (INA) is the primary federal legislation that directs U.S. citizenship and immigration, including employment. The Immigration and Nationality Act (INA) is the primary federal law regulating immigration to and from the United States. It was enacted in 1952, though it has been amended many times since then. The INA is codified as Title 8 of the U.S. Code. The INA regulates entry to and removal from the U.S., dictates visa requirements and quotas, and more. The INA also encompasses immigrant workers, temporary nonimmigrant workers, and business workers. It authorizes employment-based visas, sets requirements for work authorization, and prohibits employers from discriminating based on national origin or citizenship status. See workplacefairness.org for information on national origin discrimination.
The Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS), Department of Justice (DOJ), Customs and Border Protection (CBP), and the U.S. Department of Labor (DOL) are a few of the most relevant authorities.
People traveling to the U.S. on a temporary visa for employment typically may be able to bring their spouse and children under 21-years-old. In this sense, a non-immigrant visa holder may bring certain family with them to the U.S. However, the family members would need to enter the U.S. under separate visas. What type of visa they should apply for depends on the type of visa the employee enters on. For example, family members may be limited to a B-1 visitor visa. Generally, the family members cannot work in the U.S., but children can attend school. A spouse may apply to work in the U.S., however, if they are a dependent spouse of an H-1B nonimmigrant and meet other criteria.
Noncitizen workers may be hesitant to report an employer’s health and safety violations in fear of retaliation. OSHA offers two routes that allow workers to remain in the U.S. to effectuate their right to a safe workplace:
Deferred Action. The Department of Homeland Security may approve a noncitizen for deferred action, delaying removal proceedings against them for up to 2 years. Workers should contact OSHA for a statement of interest, which improves the chances of approval by DHS. For example, removal proceedings may be deferred so the worker can aid an investigation of an alleged labor violation.
U Visas and T Visas. These visas provide legal status to workers who meet certain criteria, including to assist OSHA or another enforcement agency in taking legal action against their employer. U Visas are reserved for workers who were abused because of their employer’s criminal activity or who have information about it. T visas are available to workers who were victims of human trafficking or who have information about their employer engaging in labor trafficking.
For examples and more information, see this fact sheet shared by the National Council for Occupational Safety and Health (COSH).
Migrant children are owed the same legal labor protections as citizen children. However, migrant children are often targeted and more likely to be exploited. Visit our page on labor trafficking to learn more information.
Yes. Generally, all foreigners who travel to the U.S. for work must apply for and obtain a visa. Employers cannot legally hire an employee who is not authorized to work in the U.S. There are multiple types of visas, including several types of visas designated for employment purposes. There are, however, rare cases where foreigners may travel to the U.S. without a visa if they meet certain criteria.
See the U.S. Department of State website for more information.
Labor certification is used to allow U.S. employers to hire a foreign worker before they have relocated to the U.S. or applied for an immigrant visa. These employers are referred to as a “sponsor” of the foreign employee. See the U.S. Department of Labor website for more information.
Employers are required to verify that their employees are authorized to work in the U.S. Examples of documents an employee may have that can verify eligibility include a Green Card, certain visas, and / or an Employment Authorization Document (EAD). An employer may need to obtain labor certification on their employee’s behalf. Both employers and employees both must file an I-9 Form for employment eligibility verification.
An Employment Authorization Document (EAD) proves that a foreigner may legally work in the U.S. for a set time period. To apply for an EAD, prospective employees must file a Form I-765. An EAD is required for any prospective foreign worker who needs to apply for permission to work, such as students with an F-1 or M-1 visa. Green Card holders and certain visa holders do not need an EAD.
A Green Card is a Permanent Resident Card. Immigrants to the U.S. may apply for and receive a Green Card, which allows them to permanently live and work in the U.S.
Applying for a Green Card can be a complicated and lengthy process. Applicants can approach it in multiple ways. All applicants must fit within an eligibility category, as explained below. The USCIS imposes different requirements on different applicants, so it is best to consult with a lawyer for help in applying for a Green Card. The USCIS shares more information about the Green Card application process.
Green Card applicants must fit into an eligibility category. See the U.S. Citizenship and Immigration website for more information.
To hire Green Card holders, employers must verify that the prospective employee is authorized to work in the U.S. More information about the verification process is available here.
Students who wish to study and work in the US will generally need a student visa. There are two nonimmigrant visa categories for persons wishing to study in the United States. These visas are commonly known as the F and M visas. See the US Immigration Services website for more information on these visas.
“Undocumented worker” refers to foreigners who traveled to the U.S. – including legitimately – who do not legally have permission to work in the United States. This could be for a variety of reasons. For example, their work authorization may have expired.
Yes. The Immigration Reform and Control Act (IRCA) added section 274A to the INA to include penalties for illegal employment. Not only can employers fire or refuse to hire a person who they learn is unauthorized to work in the U.S., they are legally required to. (274A(1)). Employers must verify that any employee they hire is authorized to work; This may require filing an I-9 form. Civil and criminal penalties may be leveraged against employers who violate this federal law.
Yes. Even though employers cannot legally hire or retain employees who are not authorized to work, the anti-discrimination provision of the INA still offers some protections to undocumented workers. Employers are prohibited from discriminating against an employee based on their immigration status – including because they are undocumented. In this sense, the INA prohibits employers from paying undocumented workers less than their co-workers even though it simultaneously requires such employers to fire undocumented workers.
