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Hiring Rules for Non-US Job Seekers

By Dan Woog, Monster Contributing Writer

As the immigration policy debate heats up over the issue of undocumented workers, it's easy to lose sight of the work categories and hiring rules that affect immigrant job seekers.

In practice, immigration's impact on hiring is very nuanced. Immigrants do much more than pick lettuce and clean hotel rooms. They are engineers, doctors, business executives, professors, researchers, athletes, investors, entertainers and religious figures. They come from Europe and Australia as well as the Caribbean, Latin America, Asia and Africa.

Even "immigrant" is a misnomer. The hiring rules include men and women who are already in this country but are not US citizens, as well as people living overseas who want to come here to work. Some seek citizenship; others do not.

To clarify the issues, here is an overview of the rules governing work by non-US citizens.

The Citizenship and Immigration Services

For all noncitizens, the most important agency is the US Citizenship and Immigration Services (USCIS), formerly the Immigration and Naturalization Service (INS). Now part of the Department of Homeland Security, USCIS administers the immigration and naturalization laws and enforces the Immigration and Nationality Act.

The Documents

If you are not a citizen or a lawful permanent resident of the US, you may need to apply for a USCIS-issued Employment Authorization Document (EAD), which proves you may work in this country. You can apply for an EAD by filing Form I-765 or by mail with the USCIS Regional Service Center where you live. For more information, call 800-870-3676.

Whether you need an EAD or not, an employer should follow the Immigration Reform and Control Act (IRCA) of 1996, and verify that you are authorized to work in the United States. Employers should ask for you to provide one document showing both your identity and authority to work, such as a permanent resident card (also known as a "green card"), or a combination of one document showing your identity and one document showing your authorization to work in the US, such as a driver's license and unrestricted Social Security Card.

This long list of papers includes a driver's license or ID card with a photograph and identifying information; US military card or draft record; Social Security Card, or original or certified copy of a birth certificate. For more details, see Form I-9.

If you believe you have been discriminated against because you are not a full-fledged citizen, even though you are authorized to work in the US, contact the Office of Special Counsel for Immigration-Related Unfair Employment Practices, PO Box 27728, Washington, DC 20038-7728, or call 800-255-8155.

Working as a Permanent Resident

If you live outside the States and want to live and work permanently in the US, you must determine if you are eligible for permanent residency. First, identify an employer who wishes to hire you. The employer must then file Form I-140 (Petition for Alien Worker). At the same time, you need to apply for an immigrant visa number with the USCIS.

Five categories of employment skills are used to determine eligibility for a permanent resident work visa:

  • EB-1: Foreign nationals with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors or researchers, and managers and executives subject to international transfer to the United States.
  • EB-2: Workers are professionals with advanced degrees, or persons with exceptional ability.
  • EB-3: Skilled or professional workers.
  • EB-4: Special immigrant religious workers.
  • EB-5: special category for immigrant investors.

Working as a Nonresident

Not every noncitizen seeking work in the US is an immigrant -- someone seeking permanent residency. There is a long list of visa types for nonimmigrants. If you are seeking seasonal or temporary work, you will need a temporary work visa. These include the sometimes-controversial H-1B as well as several other classifications.

In most cases, these temporary work visas depend on a request by the employer, who files an I-129 petition. Most temporary work visas have a one- to three-year maximum length, some can be renewed for an additional term.