When it comes to hiring foreign employees,
they are either in the country legally…or not.
Even workers in the country legally may not be authorized to work. Failure to follow legal employment practices can subject an employer to significant penalties and fines. However, determining that status without becoming discriminatory is not as easy as it may sound.
Jeff Larson, J.P. Larson Law Office, Minneapolis, MN, advises clients about immigration issues and helps untangle situations when employers and employees are not in compliance with U.S. immigration laws.
Non-citizens may be in the United States legally under work permits, Larson explains. International workers may also have obtained visas in order to perform jobs for a specified time period. He often helps employers obtain appropriate visas for prospective employees that best suit their needs.
All employers and agricultural recruiters are required to fill out and file an Employment Eligibility Verification Form I-9 for every employee hired after Nov. 6, 1986, even if the employee is a U.S. citizen. Employees have three days from the date of hire to produce documentation of identity and legal authorization to work in the United States. But an employer cannot ask for these documents until they have officially made an offer and hired the employee, Larson points out.
The U.S. Citizenship and Immigration Services Web site, http://www.uscis.gov/, has a list of documents that an employer must see to verify an employee’s legal status.
It is critically important to treat all employees the same when verifying employment, regardless of race or country of origin. “The rules apply whether you have one employee or 100,” Larson warns. “Whatever process you use for one employee, you have to use for all employees, otherwise a civil rights lawsuit can be filed against you.”
Employers are required to keep an I-9 form on file for each employee and must maintain the records for a minimum of three years or one year after the last date of employment, whichever is longer. Immigration authorities can conduct an audit of an employer’s I-9 records at any time.
Fines and even criminal penalties can result from non-compliant employment practices. If a producer hires illegal aliens and someone gets hurt, he/she can be in big trouble. In a recent case, a New York dairy farmer was arrested and faced criminal charges when a migrant worker died. Eight other illegal migrant workers indicated the producer knew he was hiring illegal workers.
Employers can now use the Internet-based system, E-Verify, to compare information from the I-9 form to government records to confirm that an employee is authorized to work in the United States.
“There are an estimated 11-12 million undocumented persons in the United States, many of whom are working or are looking for work. I can’t tell you how often an employer will ask me, ‘I have these great employees, what can I do to help these people?’” Larson explains. “All indications are that the Immigration and Custom Enforcement Service is stepping up employment verification efforts by beginning to tap the shoulders of employers, in contrast to employees, to make sure they are being compliant in their hiring practices in the future.”
Learn more about international workers, Form I-9, the E-Verify program and immigration issues at the U.S. Citizenship and Immigration Services Web site noted earlier.
In some parts of the country, it is difficult to find dependable employees in the local labor pool. Some producers have found good help by hiring temporary foreign workers. Finding affordable foreign labor, while both employer and employees maintain legal status, can be a balancing act.
There are several options for hiring foreign workers. Agricultural employers tend to hire foreign employees using temporary or seasonal visas, such as the H-2A Temporary Agricultural Worker visa program, administered by the U.S. Department of Labor and the Citizenship and Immigration Services (CIS).
Kristin Paulson Gibbons, Gibbons Law, Minneapolis, MN, represents U.S. agricultural and seasonal-need clients on the employer side of federal employment, immigration and litigation matters. Gibbons advises clients to plan ahead if workers are needed by a specific date. The application process for temporary/seasonal foreign workers’ programs, such as the H-2A program, should be started at least 3-4 months before they are needed.
Upon approval, the requested work authority for the foreign workers is usually good for 10 months or less, and is based on the date of need specified on the application. The premise of the H-2A program is that the need for workers is created due to temporary or seasonal demands for agricultural labor.
H-2A visa holders can remain in the United States for up to three years, but must be employed in seasonal agricultural employment without interruption. To meet the requirement, the employee may need to line up consecutive seasonal agricultural employment. This can include returning to the original, sponsoring employer for the next year’s temporary/seasonal needs before having to depart temporarily from the United States.
Employers may petition for permanent citizenship for employees, but the process is lengthy and expensive, and requires that the worker remain outside of the country until an immigration visa becomes available.
The U.S. Department of Labor has requirements that must be met even before an employer can request visas for potential foreign national workers, Gibbons explains. To obtain an H-2A visa, the employer must first request a prevailing wage determination from the Labor Department. The intent is to ensure that potential foreign workers are not paid more or less than similarly employed U.S. workers. Foreign workers must be paid the prevailing wage rate for the area in which the person will be working.
The employer must also prove that the job was advertised and available to U.S. workers first, and that there were no available workers willing to accept the positions at the time the labor market was tested. When the recruitment process is complete, the employer files paperwork with the Department of Labor stating that hiring temporary or seasonal foreign workers is the only option for their agricultural business and is crucial to getting the work done. When the department has issued certification for the temporary/seasonal employment of foreign nationals, the employer can then file work authorization applications with the CIS.
The employer must provide free and approved housing to workers who cannot return to their own homes the same day they work. Housing must pass inspection by state agencies.
Employers are also required to provide either three meals a day or offer free and convenient cooking and kitchen facilities for workers to prepare their own meals. The employer can charge each worker a specific fee if three meals are provided each day.
In addition, after a worker has completed 50% of the work contracted, the employer is required to reimburse the worker for the cost of traveling from their home to the farm. Free transportation is required between the housing site and worksite. When the work contract concludes, the employer is also responsible for paying return transportation to the employee’s home country, or to the site of the next job.
Temporary/seasonal workers cannot apply for an H-2A visa themselves; they must have a U.S. sponsor who must offer employment for at least three-fourths of the workdays in the work contract period. Full-time work is at least 30 hours/week, according to Temporary Employment Certification rules. If an employer application indicates they will pay the employee for 40 hours/week, they are obligated to do so. The government imposes financial penalties if the requirements are not met. Non-compliant employers may be barred from hiring international workers.
The “50% Rule” further guarantees that U.S. workers get priority in the workforce. If any U.S. worker applies for a job on the same farm up until the time that 50% of the contract period for the foreign worker elapses, the employer must hire the U.S. worker either in addition to, or by displacing a foreign worker.
Producers sometimes have connections to specific workers they would like to hire in other countries. Usually, a producer works with international employment agencies to find the people they need to hire upon approval of the petition for the H-2A workers. Potential employees must complete an application process at the U.S. consulate in their home country.
Another option, J1 visas, can be obtained by foreign nationals taking part in on-farm international exchange training programs in the United States. The trainees can stay for up to 18 months, but generally must return to their home country to practice the newly gained skills.
“The J1 visa program may be a good way for some agricultural producers to try out the idea of hiring international employees to see if foreign labor is a viable option. The employer must be willing to work with the J1 agency in documenting the training involved throughout their employment,” Gibbons says.
Even though the costs of hiring an international worker do add up, Gibbons says the advantages of finding skilled agricultural workers who are willing to work in sometimes remote, sparsely populated areas and in extreme weather conditions outweigh the costs.
Sometimes neighbors share the cost of employees. An agricultural association may also file the application to become an employer of international workers.
Lora Berg is a freelance writer in Lakeville, MN.