Nonimmigrant Workers
Nonimmigrant workers in the United States have employment rights, despite their temporary immigration status. Under federal law, it is illegal to discriminate against any worker, regardless of immigration status. The Immigration and Nationality Act prohibits discrimination based on: (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.
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
Under 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. If you want to report one of these forms of discrimination protected under the act, click here to file a charge or call IER’s Worker Hotline at 1-800-255-7688. If you are an employer with questions about the anti-discrimination provision of the INA, call IER’s Employer Hotline at 1-800-255-8155. More information on filing a charge with the IER about discrimination electronically can be found at: https://www.justice.gov/crt/filing-charge. Other ways of submitting a charge form is through email, mail or fax the IER charge form to:
Immigrant and Employee Rights Section
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW (4CON)
Washington, DC 20530
Fax: 202-616-5509
Website: www.justice.gov/IER
Email: IER@usdoj.gov
IER’s charge form is available in several languages. Charges should be filed within 180 days of the alleged discrimination or retaliation.
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.
IER’s hotlines provide workers and employers with an opportunity to receive information about the anti-discrimination provision of the INA and to work directly with IER’s staff to resolve potential immigration-related employment disputes informally and quickly without contested litigation. Workers and employers are encouraged to call the respective hotlines above to seek assistance with immigration-related employment issues. Please note that IER cannot provide legal advice or individual legal representation. Language services are available and free of charge.
Regularly occurring webinars include webinars targeted to: (1) employers, (2) workers and their advocates, (3) Spanish-speaking audiences, and (4) individuals wishing to better understand workers’ rights in the I-9 and E-Verify context presented by IER jointly with U.S. Citizenship and Immigration Services. There are two hotlines available for questions and additional information:
Worker Hotline: 1-800-255-7688Employer Hotline: 1-800-255-8155
Regularly occurring webinars include webinars targeted to: (1) employers, (2) workers and their advocates, (3) Spanish-speaking audiences, and (4) individuals wishing to better understand workers’ rights in the I-9 and E-Verify context. The webinars are jointly presented by IER and USCIS. Register for a webinar for free here. If you are an organization seeking to educate your staff or your community about the anti-discrimination provision, you may also inquire about scheduling a customized webinar to suit your needs by emailing: IER@usdoj.gov.
The U.S. Department of Labor’s Wage and Hour Division (
) 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.
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