Employer Issues

Many employers are unable to find qualified and available workers to fill needed job openings. Even in a bad economy, with otherwise high unemployment, highly skilled workers are still in demand, particularly in fields involving science, technology, engineering, and math. Many employers turn to foreign nationals to fill these vital jobs. The specific types of nonimmigrant visas, and their requirements, are discussed elsewhere on this site.

Employers who hire foreign nationals are required to comply with additional legal requirements, above and beyond existing U.S. labor laws. For example, H1B petitioners must file a detailed labor condition applications (LCA) with the Department of Labor. When an LCA is then certified, the employer must submit it to the USCIS with the H1B petition. If the terms and conditions of employment vary in any way from those set forth on the LCA or H1B petition, the employer may be fined or even prosecuted by the government. While prosecutions are limited to only the most egregious cases, fines are quite common. Employers who are found to willfully violate the law with respect to H1B workers are debarred from participating in it.

Most other nonimmigrant categories do not carry the same legal sanctions for possible violations as are contained in the H program. Still, employers must take care to make sure that their foreign national employees maintain lawful status at all times.

Employers must be particularly mindful of the regulatory requirement that they verify the lawful work authorization of all employees - irrespective of their citizenship or immigration status. We provide additional information about this and other employer compliance issues elsewhere on this site.