Immigrant Worker Rights

An immigrant worker is a person who originates from outside the U.S. but now works and likely lives in the U.S. Many immigrant workers come to the U.S. through an arrangement with an employer before their arrival.

Those individuals may have a labor contract that helps them get a visa to work in the U.S legally. In these cases, an employer sponsors the immigrant to enter the U.S. and work for the employer. This procedure may require an alien labor certificate.

Other immigrant employees who are already in the country or are coming to the U.S for non-work-related purposes may select different paths to get legal status to perform authorized work. For instance, immigrants who qualify for a green card through marriage to a U.S. citizen or as a family member of a U.S. citizen may lawfully work after getting the green card.

Many types of jobs are unrestricted to immigrant workers, including:

• Skilled work that requires certification or specialized training and knowledge;
• Professional careers including physicians, attorneys, and educators;
• Business and managerial careers;
• Religious clergy or leadership positions; and
• Manual and technical labor.

Because immigrant workers are non-citizens, they may be subjected to specific employment and immigration regulations. These may vary depending on the place of work and the state.

What Is the Process for Obtaining Alien Labor Certification?

There are several measures that the employer must satisfy before alien labor certification is given. These steps include:

• Application: The employer must first apply with a state employment agency (the agency’s name may differ by state). The application will usually contain a job description, job qualifications, and experience needed. The employer must display how the foreign candidate will fulfill the job qualifications.
• Recruitment: After reviewing the application, the employer must complete a recruiting process. Labor certification will only be given if U.S. citizen employees cannot fill the job. All candidates must be interviewed and given a fair chance for hiring
• Approval: If a U.S. citizen qualified for the job cannot be located, the state agency will endorse the application. If it is determined that the recruiting process was not performed in good faith (i.e., U.S. citizen candidates were not seriously considered), the application may be rejected
• Post-Approval: After approval, the employer can file with other state entities such as the Department of Labor for further verification. They can also begin applying for a visa petition to receive a green card for a foreign worker.

The process for getting Alien Labor Certification can be somewhat longer due to the recruiting requirements involved. The Department of Labor is very stringent regarding granting certification to foreign workers before providing U.S. workers a chance to be hired. This is particularly true during times of high unemployment.

Do All Classes of Alien Employees Require Labor Certification?

Some classes of alien workers are excused from labor certification requirements. An employer does not need to go through the certification process listed above when petitioning these types of workers:

• Aliens with Extraordinary Ability in the Arts, Sciences, Business, Athletics, or Education: This includes excellent executives, supervisors, researchers, or professors. These workers fall under the visa category of “Employment First Preference.”
• Professionals with Advanced Degrees (Employment Second Preference): May also include employees with special abilities in the Arts, Sciences, etc.
• Skilled Workers and Professionals with Baccalaureate Degrees: (Employment Third Preference)
• “Special Immigrants”: Such as religious workers and pastors (Employment Fourth Preference)
• Immigrant Investors: Individuals who are willing to invest $500K – $1 million in the U.S. and create at least ten job positions (Employment Fifth Preference)

If the alien worker does not fall into any of these preference categories, the employer must go through the listed alien labor certification process.

What Is the Process for Obtaining a Green Card?

While the procedure for getting a green card and legal permanent resident status can differ depending on your case, the bulk of applicants will go through the following steps:

• An immigrant petition will be filed by your immediate relative who is a U.S. citizen or by an employer. While these are the most typical ways that filing is completed, there are a few other exceptional circumstances for filing that are listed on the United States Citizenship and Immigration Services (USCIS) website;
• The USCIS must endorse your petition;
• You must get a visa number;
• You will file a Green Card application with USCIS or a visa application with the U.S. Department of State;
• You have an appointment where you will supply fingerprints, photos, and a signature;
• An interview is conducted where you will be directed to bring various documents. What you need to bring will depend on your situation; and
• A judgment on your application is issued.

If you have an unusual situation, getting a green card will be separate and more complicated.

Some examples of other conditions where you may apply for a green card are if you are a refugee, human trafficking victim, or abuse victim.

It is also essential to understand that if you have any criminal charges on your record, this may strain your chances of getting a green card.

Do Immigrant Workers Have the Same Rights as Working Citizens?

In most cases, immigrant workers are entitled to the same privileges as citizens. Nevertheless, some requirements of immigrant workers can impact their access to specific jobs, such as language prerequisites and access to a legal working visa.

Immigrant employees have the same privileges as citizens when it comes to the following work situations:

1. Workplace Safety: All employees, regardless of their citizenship status, are permitted a secure working environment, including having the freedom of training and information regarding specific risks in their job.
2. Minimum Wage and Overtime Pay: If jobs performed by citizens are subjected to minimum wage and overtime pay regulations, then immigrant workers performing the same position are also entitled to such salaries.
3. Free from Discrimination and Harassment: Immigrant employees are shielded the same as citizens regarding workplace discrimination and harassment. Further, immigrant workers are also covered from discrimination and harassment stemming from their immigration, including race, ethnic background, and in some circumstances, their spoken language. It is also unlawful for employers to discriminate against immigrant employees in hiring and firing conclusions simply because they are immigrants.

What Happens if an Immigrant Workers Rights Are Violated?

The U.S. Equal Employment Opportunity Commission (EEOC) is the direct government agency responsible for any offenses. If an immigrant employee has been the subject of discrimination or illegal labor practices, one can file a complaint with the EEOC. The agency may investigate and has various tools to end the discrimination or other workplace risk, including fines against the employer and shutting down an employer’s operation.

Immigrant employees may also sue the employer for workplace violations.
Immigrant workers who file EEOC claims or supply truthful info to the EEOC once a complaint has been filed cannot be disciplined by the employer for initiating or aiding in the investigation. Such actions as firing or cutting hours and pay are unlawful if the employer does so only to discipline the employee for partaking in an EEOC investigation.

Do I Need a Lawyer for Immigrant Worker Rights?

An employment lawyer or immigration lawyer can help explain your rights as an immigrant worker. They can help you find the appropriate legal action for your situation and file the necessary claim or petition. Use LegalMatch today to protect your privileges as an immigrant worker.