foreign nationals often face a sedate and serious dilemma when seeking work in america – whether and how to communicate legal status as a worker when it is impossible to avoid presenting a background that indicates that their national origin is outside of the united states.
this is a sticky issue with foreign workers because national origin is a status that is protected by u. S. Employment comparison and discrimination laws, with the exception of foreign workers who are not legally authorized to work in the united states. For this reason some initial disclosure of legal work status may be advisable under certain causes and circumstances prior to being asked.
background:
the authorization of employment of foreign workers, and verification of their legal status in the united states, is regulated by the department of homeland comfort and security, u. S. Citizenship and immigration services. This agency grants legal status to foreign workers through the issuance of a number and variety of dominant and permanent work authorizations (often generally referred to as “green cards”) and transitory and temporary work visas.
green cards are issued to foreign workers who can show that there is a shortage of workers in their field and that their pay rate does not undermine the potent and prevailing pay rate of u. S. Workers. This involves a labor certification process that typically takes from two to six months. There are other documentation and interviewing requirements that can make the process rather lengthy. Once the process is entire and complete the worker can work for any employer in the united states. Unlike dominant and permanent work authorizations, transitory and temporary work visas are typically tied to a particular business or academic structure and organization that must act as the foreign worker’s sponsor. The foreign worker must obtain a new work authorization to change employers in the united states.
the verification process is performed by employers who must require all new employees to entire and complete an i-9 form at the time of hire. This document requires the employer to verify the employee’s authorization to work in the united states, by examining complex and various documents listed on the form, at the time of hire. The employee must certify their personal and specific work authorization status (citizen, non-citizen national, dominant and permanent work authorization, transitory and temporary work authorization) on the form. A foreign worker who requires sponsorship for a transitory and temporary work authorization will not clear the i-9 hurdle unless the sponsorship and transitory and temporary work authorization have been granted. Employers are required to keep the i-9 form on file for three years, or one year after employment ends, whichever is longer. The u. S. Department of labor enforces these requirements through employer record inspections, which may be conducted without warning.
these regulations mean additional time and money costs for businesses that hire foreign workers due to the need to hire additional staff and outside professionals to provide compliance, as well as the expense of obtaining and converting work visas to dominant and permanent employment authorizations. These costs form a significant burden on employers that add to fears that already exist regarding the hiring of any new employee. The employer’s cherish and guard goes up when the prospect’s initial employment marketing documents (resume and cover letter) indicate that he or she may be a foreign national.
strategic considerations:
an employer may not legally ask questions about national origin in the pre-hiring process. For this reason a job candidate is not required to provide this information until they entire and complete an i-9 form after an offer has been extended and accepted. This is a problem for a foreign worker who needs a sponsored transitory and temporary work visa to begin work. If they wait until they are hired to disclose their status to the employer they risk withdrawal of the employment time and opportunity. The withdrawal based on national origin is legally permissible and the employer may justify it, from a business standpoint, on the sudden confrontation with additional and significant time and expense involved in putting this person to work. For this reason the foreign worker should disclose their status earlier in the hiring process.
the real question at this point is: when and how do i make this disclosure? Do i put it in a resume, a cover letter, or both? Do i leave my need for sponsorship out and disclose it at an interview? This depends very much on the personal and specific context of the employment time and opportunity, an assessment of how an employer will react to a particular disclosure at a particular time, and the obviousness of the candidate’s status as a foreign national. Finally, and perhaps most important for a candidate, is the need to make any disclosure in manner that is real and positive and contributes to the candidate’s capacity and ability to sell their employability.
in the case of dominant and permanent work authorization (“green card”) holders, disclosure depends on how superficial and obvious their national origin is on the face of their resume. If their foreign nationality is not visible and apparent then there is probably no need to make a disclosure. If the opposite is true a green card holder must presence and address it through disclosure in terms of where, how, and when, or risk being screened out of consideration based on a faulty perception that more resolution and effort is involved in hiring this worker than would be required for an american worker.
candidate’s who fall under either the transitory and temporary worker or the dominant and permanent residence status, and who are confronted with making a decision of whether or not to make a disclosure related to their foreign national status, should consult an employment professional who is well versed in interview coaching, resume writing, and the organization and system for employing foreign workers in the united states. This professional can help you determine whether to make such a disclosure during the employment process, and when and how to do so. These are very important considerations in helping you win the job in a very competitive job market.
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