The Employment Law Guide describes the statutes and regulations administered by the Department of Labor that affect businesses and workers. The Guide is designed mainly for those needing “hands-on” information to develop wage, benefit, safety and health, and nondiscrimination policies for businesses in general industry.
Immigration and Nationality Act – Eligibility, Verification, and Nondiscrimination
The Immigration and Nationality Act (INA) includes provisions addressing employment eligibility, employment verification, and nondiscrimination.
Under the INA, employers may hire only persons who may legally work in the United States and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9). Employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer. Employers who fail to complete and/or retain the I-9 forms are subject to penalties. More detailed information and copies of the I-9 form may be obtained from the U.S. Citizenship and Immigration Services (USCIS).
The INA also protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status. The Department of Justice’s (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices enforces the antidiscrimination provisions.
Antidiscrimination provisions under the INA.
Minimum Wage and Overtime Pay
The Fair Labor Standards Act (FLSA) establishes standards for minimum wages and overtime pay. The FLSA requires employers of covered employees who are not otherwise exempt to pay these employees a minimum wage of not less than $7.25 an hour as of July 24, 2009. While virtually all employees engaged in agriculture are covered by the Fair Labor Standards Act because they are associated with the production of goods for interstate commerce, there are exemptions from the minimum wage provisions, the overtime pay provisions, or both for certain agricultural employees. For more detailed information visit the
U.S. Department of Labor.
Migrant and Seasonal Agricultural Workers
The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) safeguards most migrant and seasonal agricultural workers in their interactions with farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing. However, some farm labor contractors, agricultural employers, agricultural associations, and providers of migrant housing are exempt from MSPA under limited circumstances.
For general information regarding the MSPA see the Department of Labor publication Employment Law Guide: Laws, Regulations, and Technical Assistance Services. For more detailed information visit the Department of Labor.
In addition, other labor laws such as the Occupational Safety and Health (OSH) Act may also apply.
The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Before the U.S. Citizenship and Immigration Services (CIS) can approve an employer’s petition for such workers, the employer must file an application with the Department of Labor stating there are not sufficient workers who are able, willing, qualified, and available, and the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The Department of Labor’s Wage and Hour Division, Employment Standards Administration (ESA) has responsibility for enforcing provisions of worker contracts.
Employers who wish to hire foreign workers to temporarily perform services or labor or to receive training need to also file an I-129 petition with the U.S. Citizenship and Immigration Services (CIS). The I-129 is mainly used for nonimmigrant categories; thus, in most cases, workers who enter the United States under this petition must depart the U.S. when their maximum period of stay has been reached. Form I-129 may also be used to petition for an extension of stay or change of status for certain nonimmigrants.
Once the petition is approved, the employer or agent is sent a Notice of Approval, Form I-797. Approval of a petition does not guarantee visa issuance to an applicant. Applicants must also establish that they are admissible to the U.S. under provisions of the Immigration and Nationality Act (INA). If the prospective worker (beneficiary) is outside of the country, he/she must apply for a visa. After the USCIS has approved the I-129 and sent notice to the consulate in the beneficiary’s country, the beneficiary must file a visa application with the consulate. Some aliens may be visa exempt. In those cases, the I-129 approval notice is sent to the port of entry (POE) where the beneficiary intends to apply for admission. For specific procedures on Visa Application Procedures, Required Documentation and Visa Ineligibility Waiver, please visit Visa Services at the Department of State.
Applicants should be aware that a visa does not guarantee entry into the United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant who is inadmissible under INA, even if the applicant has a visa. Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.
Adverse Effect Wage Rates
Adverse effect wage rates are the minimum wage rates which the Department of Labor has determined must be offered and paid to U.S. and foreign workers by employers of nonimmigrant foreign agricultural workers (H2-A visa holders). Such employers must pay the higher of the AEWR, the applicable prevailing wage, or the statutory minimum wage as specified in the Code of Federal Regulations.
Historical Time Series of Adverse Effects Wage Rate