According to the U.S. Bureau of Labor Statistics, the number of unfilled job openings increased by over three million in the last year. The construction industry has been particularly hard hit by labor shortages, causing many employers to turn to alternative hiring sources, including recruitment and hiring of foreign nationals. This can be a consistent and reliable source of labor in an otherwise difficult market.

However, employers must be mindful of the significant immigration-related compliance obligations involved in hiring and onboarding, as well as in management of programs recruiting foreign nationals for specific positions. In particular, construction industry employers should ensure all recruitment and hiring programs are legally compliant. Additionally, they must be cautious of citizenship discrimination and overdocumentation violations.

Failure to comply can result in costly audits by the Department of Justice, or complaints of citizenship discrimination. The Department of Justice has been particularly active in investigating immigration-related issues over the last year, including securing significant settlements against several employers who engaged in unintentional, technical violations of federal immigration regulations.

Best practices employers can take to avoid immigration-related litigation in the current labor market include:

1. Working with legal counsel to implement any new programs involving recruitment of foreign nationals (e.g., H-2B or J-1 Visa...

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