The United States has long been a melting pot of cultures and backgrounds, with millions of foreign-born individuals calling it home. As of 2021, approximately 45 million people living in the U.S. were born in other countries, accounting for about 15-16 percent of the population. While this number has seen a slight decline from its 2018 peak, it remains a significant demographic within the country.
Foreign-born residents in the U.S. include both lawful and unauthorized individuals, with the former making up the majority. In fact, three-quarters of foreign-born residents are in the U.S. legally. These individuals contribute to the American workforce, with foreign-born workers accounting for just over 18 percent of the labor force in 2022.
The Impact of International Students
The U.S. is a popular destination for international students seeking higher education. The National Science Board reports that more international students choose to pursue degrees in the U.S. than in any other country. These students also show a higher inclination towards STEM fields, with almost half of the international student population pursuing bachelor’s degrees in science, technology, engineering, and mathematics. In comparison, only about 35 percent of U.S. citizens and permanent residents choose STEM fields for their undergraduate studies.
The significance of international students in STEM fields is further emphasized by the fact that in 2019, half of the master’s and doctoral degrees granted in STEM fields by U.S. institutions went to foreign students.
The Impact of the COVID-19 Pandemic
The COVID-19 pandemic had a temporary impact on immigration rates, causing a decline in numbers. However, as the world begins to recover, immigration rates have started to rebound in 2022.
The pandemic also had a significant effect on the job market, particularly impacting foreign-born workers. Many of these individuals lost their jobs during the pandemic-related economic downturn. As the economy recovers, employers across industries are increasingly encountering foreign-born candidates during recruitment.
The Compliance Landscape for Employers
While employers seek to diversify their workforce and tap into the talent pool of foreign-born individuals, they must also navigate the compliance landscape surrounding immigration and employment. This landscape has seen an increase in enforcement efforts targeting employers rather than solely focusing on unauthorized workers.
The well-known regulatory framework enforced by U.S. Immigration and Customs Enforcement (ICE) involves large-scale worksite raids and I-9 audits. However, these large-scale raids have subsided since 2020, and I-9 audits have not yet returned to pre-pandemic levels.
Another enforcement scheme that poses challenges for employers is the Immigrant and Employee Rights (IER) Section of the U.S. Department of Justice (DOJ). The IER enforces anti-discrimination provisions and unfair documentary practices during recruitment, hiring, and termination of workers. Recent cases, such as the DOJ suit against SpaceX and settlements with employers using discriminatory recruiting platforms, highlight the importance of compliance with anti-discrimination laws.
Creating a Safe Harbor for Employers
Navigating the complexities of immigration and employment laws can leave employers feeling lost at sea. However, there are provisions and strategies that can provide a safe harbor for employers and help them navigate the compliance landscape.
The Role of Safe Harbor
Safe harbor provisions protect employers from liability or penalties if certain conditions are met. While U.S. immigration law has limited safe harbor provisions, one key provision is the voluntary use of the E-Verify system. Employers who enroll in and use E-Verify to verify employment authorization are protected from civil and criminal penalties related to hiring undocumented workers.
By combining E-Verify with the mandatory I-9 verification process, employers establish a stronger defense against charges of knowingly employing unauthorized workers. This combination provides a level of protection for employers, helping them avoid potential penalties and legal issues.
Developing a Recruitment and Hiring Process
To build their own safe harbor, employers must develop, implement, and enforce a recruitment and hiring process that complies with federal anti-discrimination and employment verification requirements. This process should allow for flexibility in deciding whether to sponsor foreign national workers for immigration status.
Immigration Sponsorship Policy
A crucial step for employers is to establish a clear immigration sponsorship policy. This policy should outline the company’s stance on immigration sponsorship and provide guidelines for screening candidates for immigration sponsorship needs. By clearly communicating their position on sponsorship, employers can manage expectations and avoid potential issues.
Employment Application and Advertisements
Employers can incorporate immigration-related questions into their employment application to assess whether a candidate will require immigration sponsorship. For example, adding a simple question such as “Will you now, or in the future, require immigration sponsorship to work in the U.S.?” can help employers make informed decisions during the hiring process.
In job advertisements, employers should be careful not to use applicant-limiting language that excludes certain individuals based on their citizenship or national origin. While it’s acceptable to state that immigration sponsorship is not available for a particular role, using language that restricts applicants based on their citizenship can lead to potential discrimination issues.
Audit and Training
Regularly auditing recruitment activities and employment verification practices is essential to ensure compliance with current requirements. This includes reviewing advertisements for problematic language, especially if third-party recruitment tools or platforms are used. Additionally, auditing employment verification practices, especially in light of remote document inspection during the pandemic, helps ensure compliance with I-9 requirements.
Employers should also invest in regular training for human resources and recruiting personnel, as well as other employees involved in candidate interviews and hiring decisions. This training should cover the employer’s obligations under employment verification and anti-discrimination provisions, ensuring that all personnel understand and follow the necessary guidelines.
Fostering a Diverse Workforce
While employers are not obligated to engage in immigration sponsorship to foster a diverse workforce, having a robust immigration sponsorship policy can be an essential component of a larger recruitment strategy. Foreign-born individuals, including international students, make up a significant portion of the talent pool, and employers can benefit from their skills and experiences.
However, it’s crucial for employers to avoid creating the perception that they prefer to hire foreign workers with temporary work authorization over U.S. workers with permanent authorization. Employers must ensure compliance with anti-discrimination regulations and treat all candidates fairly, regardless of their citizenship or immigration status.
The diversity of citizenship, immigration status, and national origin in the U.S. workforce presents both opportunities and challenges for employers. While foreign-born individuals contribute valuable skills and perspectives, employers must navigate the compliance landscape to avoid penalties and legal issues.
By developing a recruitment and hiring process that complies with anti-discrimination and employment verification requirements, employers can create a safe harbor for themselves. This includes establishing clear immigration sponsorship policies, auditing recruitment and verification practices, and providing regular training.
Fostering a diverse workforce is not dependent on immigration sponsorship but can be enhanced by a robust sponsorship policy. Employers must ensure fair treatment of all candidates and compliance with anti-discrimination regulations throughout the hiring process.
As the U.S. continues to be a destination for international students and foreign-born individuals, employers can benefit from embracing diversity and leveraging the talents of individuals from diverse backgrounds. By understanding the compliance landscape and implementing best practices, employers can navigate the challenges and create a thriving and inclusive workforce.