Work Visas and Foreign Labor
Employment issues related to visas and permission to work in the United States arise in a variety of different contexts and are often complex. Several government agencies are involved in granting permission for foreign workers to work in the United States on a temporary or permanent basis, and extensive regulations speak to the nature and scope of related legal rights and duties.
In general, if an employer wishes to hire a foreign worker, the employer must submit a petition to the United States Citizen and Immigration Services (“USCIS”) for a visa, either a nonimmigrant visa for temporary work or an immigrant visa for permanent residence. Once a petition is approved by USCIS, one must apply for the visa from the Department of State, which may include an interview depending on the individual’s age and other circumstances. Applicants must establish they are admissible to the United States under the Immigration and Nationality Act (“INA”). At least a dozen types of temporary work visas exist, but relatively common ones include:
H-1B: to work in a specialty occupation; requires a higher education degree or its equivalent (e.g., fashion models of distinguished merit and ability, government-to-government research and development, etc.).
H-1B1: to work in a specialty occupation; requires a post-secondary degree involving at least four years of study in the field of specialization.
With regard to immigrant visas for permanent residence, approximately 140,000 are made available each fiscal year starting on October 1. Such visas are divided into five “preference” categories and United States immigration law sets forth the qualifications necessary for such visas.
Prior to applying for and obtaining a visa, employers must sometimes seek a labor certification from the United States Department of Labor (“DOL”). This requirement applies, for example, when some immigrant visas for permanent residence are sought (e.g., “third preference” or EB-3 workers, some “second preference or EB-2 workers).
Foreign labor certification programs are generally designed to assure that the admission of foreign workers into the United States for temporary or permanent work will not adversely affect the job opportunities, wages, and working conditions of American workers. Certification from the DOL verifies there are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage, and hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers, but does not guarantee issuance of a visa.
Rights and Protections for Temporary Work Visa Holders
Nonimmigrant temporary visa holders have various rights and protections under the laws of the United States. These rights and protections generally include wage and hour rights (e.g., minimum wages, overtime, etc.), anti-discrimination and anti-harassment rights, and workplace safety rights—that is, the types of rights and protections enjoyed by American workers.
Nonetheless, common issues unique to visas often arise, such as when an employer deducts or otherwise attempts to recoup fees and costs (including legal fees) that the employer incurred in the process of filing for the visa, or when an employment agreement contains a term that purports to require the employee to reimburse the employer or pay a penalty in the event the employee leaves the United States prior to the expiration of the visa.
Generally, for visas such as H-1B and H-2B visas, an employer must pay the required wage “free and clear,” subject only to lawful or authorized deductions or withholdings (e.g., income taxes, health insurance premium contributions, etc.). This is generally understood to mean that employers cannot make certain types of deductions or withholdings, such as deductions for business expenses and certain fees and costs related to filing for the visa.
But the specific rules applicable in such situations will likely vary upon, among other things, the specific type of visa and specific costs at issue. Extensive federal regulations comment on and describe these various rules and others applicable to visa holders. See, e.g., 20 C.F.R. §§ 655, 656; 29 C.F.R. § 503.16; see also 29 C.F.R. § 531. Hiring an attorney to review these regulations and advise what they may mean for your given situation is critical to ensure you understand your legal rights and duties.
If you have questions related to your rights and protections as a current or prospective work visa holder, contact the Law Offices of Kevin J. Dolley by phone at (314) 645-4100 or by email at firstname.lastname@example.org.