How Should U.S. Teams Staff Local and Foreign Workers? Work Authorization and Role Assessment

Start with the conclusion: the staffing unit is the role, not the passport

It is common for a U.S. team to include U.S. locals, people already authorised to work in the United States, and people planning to enter through an employer pathway. The issue is that ‘local’ and ‘foreign’ cannot directly serve as categories of capability or compliance. Place of birth, passport, accent, name or whether someone appears American cannot replace role requirements and work-authorisation verification. The U.S. Department of Justice IER's hiring best practices specifically remind employers not to assume that only U.S. citizens have the right to work, and not to impose unnecessary thresholds such as ‘green card holders only’, ‘H-1B only’ or ‘Native English Speakers only’; see the Recruiting and Hiring Best Practices.

A more workable approach is to break the role down into facts, then put the candidate's current work authorisation, whether the person needs employment visa sponsorship from your company, role restrictions and the project timetable on the same staffing card. The card may conclude ‘authorised and ready for the standard onboarding process’, ‘requires an employer pathway from this company’, ‘related-company transfer pending verification’ or ‘reschedule the project first’; it should not conclude ‘foreign, therefore do not consider’.

A five-step staffing card: turn “local/foreign” into verifiable conditions

These five fields form the original decision tool in this article. Complete one for each candidate. Do not infer one person's status from another's, and do not fill it in by guesswork.

1. Role facts

First record the actual work, required degree or discipline, managerial or specialist knowledge, work location, employing entity, pay arrangements, client and system permissions, and whether the role accesses controlled technology or government contracts. ‘A U.S.-market role’ is too broad to assess a work pathway. ‘Developing a specified type of software in the United States, reporting to a U.S. entity and working in a particular state each week’ is a verifiable set of role facts. A job description also cannot add nationality or language requirements unrelated to the business just for one candidate.

2. Current work authorisation

Check whether the candidate may currently provide labour for this U.S. employer, in this role and at this work location; do not rely only on a passport or visa name. Ask about the authorisation category, the employers and roles it covers, its validity period, and whether a change or new application is needed. If uncertain, mark it ‘pending review by a qualified professional’; recruiters should not make their own legal conclusions.

3. Whether sponsorship from this company is needed

At a minimum, ‘needs sponsorship’ must establish whether the company must apply now, or whether employment visa sponsorship may be needed in the future. A person may already have work rights that do not depend on an individual filing by your company, or may be permitted to work only for a particular employer, position or under specific status conditions. At the recruitment stage, ask every candidate consistently whether they are authorised to work in the United States and whether they now or in the future require employment visa sponsorship. The Department of Justice IER FAQ recognises questions of this kind, but advises against further questions about nationality, immigration status or specific documents; see its guidance on recruitment questions.

4. Compliance limits

Put I-9, E-Verify, state labour and payroll tax, unemployment insurance, workers' compensation, export controls, client contracts and the actual work location on the same review list. A restriction must come from a real law, administrative requirement or contractual term that applies to the role. Hearsay such as ‘clients generally do not accept foreigners’ cannot substitute for a legal source.

5. Operational fallback plan

Set a latest start date, an acceptable waiting window, alternative skill coverage and temporary tasks that do not involve controlled permissions. Where work authorisation is not in place, the business can reschedule milestones internally, have authorised staff take the work first, or separately assign unrestricted preparation. It cannot let a candidate perform labour that may amount to work first and try to cure the issue with paperwork afterwards.

How to ask at the recruitment stage: consistent, necessary and recordable

A recruitment form and interview script should retain only these two questions, asked in the same way of every candidate:

1. Are you currently authorised to work in the United States?
2. Do you currently or in the future require employer sponsorship for employment visa status?

Then explain that these are role-staffing questions and that onboarding verification will be completed lawfully at the appropriate time. Do not turn them into ‘What country are you from?’, ‘Do you have a green card?’, ‘Are you a U.S. citizen?’ or ‘Will clients accept your accent?’ Do not pre-state ‘U.S.-born’, ‘U.S. passport’ or preference for a particular visa in a job posting unless an applicable law or an actual federal-contract requirement calls for it. The IER FAQ explains that an employer generally may not limit a role to U.S. citizens unless a federal, state or local rule, or an applicable federal contract, actually requires it; the same FAQ notes that birthplace, first language and accent can implicate national-origin discrimination. See the IER FAQ section on jobs and national origin.

Interview records should state ‘work authorisation: candidate statement/pending verification; sponsorship: needed/not needed/to be confirmed; questions pending professional review’, not speculative nationality labels. An answer of ‘not needed now, but perhaps in the future’ does not mean immediate rejection. It means the project plan must include the future risk in its timing and budget.

Form I-9 and E-Verify: one process, without hiding document discrimination in onboarding

I-9 is the shared entry point for every new employee

U.S. employers generally must complete Form I-9 under the rules for every new person hired to work in the United States; no exemption arises because the person is a citizen, national, permanent resident, refugee, asylee or from another background. The employee must complete Section 1 no later than the first day of paid work; the employer generally completes Section 2 within three business days after paid work begins, with earlier requirements for short employment lasting fewer than three days. I-9 may be completed early after an offer is accepted, but it cannot be used as pre-offer screening. The Department of Justice explains that employers should verify identity and employment eligibility under the same rules. USCIS I-9 Central and the Handbook for Employers M-274 are the practical entry points for completion, time limits and document rules; also see the Department of Justice's Form I-9 and E-Verify guidance.

Employees may choose their own combination of acceptable documents: one List A document, or one List B and one List C document. An employer cannot demand a passport, green card, birth certificate or additional documents because a candidate appears foreign. Where the employee presents documents permitted by the rules that appear genuine and relate to that person, apply the same process. Do not treat ‘the document will expire in the future’ as a reason to reject a person today. The IER FAQ guidance on future EADs and permanent-resident document verification also notes that a future EAD expiry does not itself mean an applicant is currently ineligible, and a permanent resident who presents a green card generally is not reverified simply because the card later expires.

Recruitment staffing and I-9 processing operate at two levels: the first assesses the role and work pathway; the second completes onboarding under the same document rules. Do not screen out lawful workers early in recruitment in the name of ‘risk reduction’, and do not choose documents for employees during I-9 processing.

E-Verify does not turn I-9 into nationality screening

E-Verify is generally voluntary for most employers, but a FAR E-Verify clause in a federal contract, certain state or local rules, a court order or a specific project may make it mandatory. Check the business location, contract and state rules first; do not decide based on a claim that ‘all U.S. companies must use it’. The E-Verify User Manual and guidance for federal contractors explain these limits separately. Whether or not E-Verify is used, I-9 and anti-discrimination obligations remain.

When a Tentative Nonconfirmation (TNC) or mismatch occurs, do not simply record it as ‘no work authorisation’. The IER FAQ guidance on mismatch handling and adverse action specifically reminds employers to give employees the required opportunity to resolve a mismatch, and not to fire, suspend, cut hours, reduce pay or delay work simply because the issue is being resolved. Follow current E-Verify and IER guidance for the relevant notices and time limits.

Existing authorisation and employer-linked pathways: do not equate “foreign” with “sponsor”

On the staffing card, candidates can first be placed on two operational tracks, but each track needs case-by-case verification:

• Track that generally does not require individual sponsorship from this company. U.S. citizens, U.S. nationals, lawful permanent residents (LPRs), asylees, refugees, and people with applicable, valid general employment-authorisation documents (such as some EADs) may be able to work for different employers. ‘May’ is not an automatic conclusion; verify status, the scope of authorisation, expiry and any other restrictions.
• Employer- or status-specific track. Certain nonimmigrant work statuses permit work only for approved employers, positions, locations or conditions. Changing employers, changing a role, transferring from abroad or extending authorisation may require a new filing, notice or another professional process. Start with the USCIS Handbook for Employers M-274 to check documents and status categories, then have an immigration lawyer assess the individual case.

For that reason, ‘a foreign employee always needs sponsorship’ and ‘anyone with a U.S. visa can work for any company’ are both dangerous simplifications. Nor may an employer bypass I-9 rules or take adverse action early because a document has a future expiry date. The staffing conclusion should say ‘based on current materials, proceed with authorised onboarding / verify this company's employer pathway / pending attorney confirmation’; nationality cannot replace those conclusions.

Roles that need an employer pathway: H-1B, L-1 and a small number of cases

H-1B: first establish a specialty occupation, then assess process capacity

H-1B is available only to qualifying roles and candidates; it is not a route for ‘any foreign professional’. The U.S. Department of Labor explains that a role generally must involve the theoretical and practical application of specialised knowledge and normally require a bachelor's degree or equivalent in a specific specialty. The employer must also file a Labor Condition Application (LCA), and pay must be at least the higher of the actual wage and prevailing wage under the applicable rules. See the DOL FLAG LCA page for details.

Operationally, separate the assessment into three questions: are the role's specialist requirements real and consistent with its duties? Can the company prepare the LCA, wage and employment records required? Is the role affected by the annual cap, electronic registration and selection, or is it cap-exempt? Where the cap-subject route applies, current USCIS rules require registration and selection for the beneficiary before the relevant petition can be filed. The FY 2027 USCIS registration notice also shows that registration windows, fees and rules can change. Registration, selection, approval and final ability to work are not the same thing; do not guarantee selection, approval or a start date to a candidate.

L-1: first establish the company relationship and overseas employment record

For L-1, first verify that the U.S. entity and the overseas entity have a qualifying parent, subsidiary, affiliate or branch relationship; a company's willingness to transfer someone is not enough. Also verify whether the candidate has normally worked continuously for a qualifying related entity abroad for at least one year within the previous three years, and whether the U.S. role is executive, managerial or specialised knowledge. Check each point against USCIS Policy Manual L-1 Chapter 8 and the complete company, employment and role materials.

A new office has special requirements relating to the initial approval, entity operations, premises and financial capacity. Do not automatically treat ‘a newly formed U.S. company’ as a qualifying new-office case. The key assessment here concerns cross-border organisational facts and project continuity; an ordinary new employee cannot be packaged as a transfer.

O-1 and TN: two narrow entries, not general fast tracks

O-1 is a high-threshold case for people with extraordinary ability in science, education, business, the arts or athletics, or extraordinary achievement in motion pictures and television. First assess the evidence and the employer/agent role against the USCIS O-1 page. Do not equate ‘substantial work experience’ with meeting the standard, and do not guarantee approval.

TN is limited to Canadian or Mexican citizens, qualifying professional occupations listed under USMCA, prearranged professional work and the corresponding qualifications. Canadian or Mexican permanent residents cannot apply for TN solely because of their permanent-resident status, and self-employment is not within this route. The U.S. Department of State's official TN page also cautions that a visa or admission is not guaranteed. TN therefore cannot be marketed as a fast-start plan for every ‘foreign worker’.

PERM is a long-term pathway stage, not a first-day onboarding shortcut

For many permanent employment-immigration pathways, PERM is the stage at which an employer obtains permanent labor certification from the U.S. Department of Labor. The DOL's Permanent Labor Certification guidance emphasises that certification is usually followed by later immigration application steps involving USCIS and others. PERM itself does not provide same-day work authorisation, and cannot let a candidate start work first and complete status later.

The staffing card should therefore separately state ‘the role merits long-term retention and an immigration lawyer may assess PERM or another permanent pathway’ and ‘the project needs someone to begin work this week’. If the conditions, recruitment testing, wage or later stages of a long-term pathway remain uncertain, first assign authorised people to key deliveries and recruit roles that need long-term commitment in stages. Do not use a long-term vision to hide the current authorisation gap.

Remote work across states, export controls and contract limits: restrict only on real legal grounds

A remote employee's work location is not a mailing address; it is where labour is actually performed. Once a role crosses state lines, labour, payroll-tax and insurance advisers should check that state's employment rules, payroll and withholding, unemployment insurance and workers' compensation. The IRS explains that employers have federal income-tax, Social Security, Medicare and unemployment-tax reporting and payment duties; see Employment Taxes. The DOL also provides a directory of state labour offices, unemployment-insurance application information and a directory of workers' compensation authorities. These directories help locate the rules; they cannot replace review of the actual state law.

Export controls or government contracts may restrict access to technology, source code or materials for a particular role, but they cannot be generalised into ‘government-client projects hire only U.S. citizens’. The Department of Justice IER FAQ notes that ITAR/EAR do not themselves require employers always to hire only U.S. citizens; review the IER FAQ guidance on export controls for the specific boundary. The Department of Commerce BIS explanation of a deemed export instead focuses on releasing controlled technology or source code to a foreign person in the United States and on whether the corresponding authorisation is needed. The correct approach is first to identify the controlled item, access scope, contract terms and real legal source, then decide whether permission tiers, technical isolation or a qualifying licence can narrow the restriction. If the position cannot be confirmed, have an export-control or contract professional review it.

Another common error is to rename someone a contractor to avoid work-authorisation, I-9 or worker-classification issues. The label cannot change the facts of control, the working relationship or provision of labour. Where a project truly requires an independent contractor, separately check classification, tax and that person's authorisation to provide services in the United States, and use the IRS employment-tax materials to identify matters a qualified professional must handle.

Three fictional role scenarios: use the same card for each

The following three examples are fictional, non-identifiable operating illustrations. They are not client cases and do not represent a legal conclusion for any person.

Scenario 1: a customer-support specialist already working in the United States

The role facts are: handling English- and Chinese-language customer tickets for a U.S. entity, with no access to controlled source code and remote work fixed in a particular state. The candidate states that they hold valid work authorisation applicable to multiple employers and do not require the company to file sponsorship now. Record the staffing outcome through the consistent recruitment questions; do not treat the person differently because they are ‘foreign’. Then proceed through I-9 and any applicable E-Verify process, and have payroll, state-labour and workers' compensation advisers verify the work location. If the scope of authorisation or document authenticity is in doubt, pause substantive work and ask a qualified professional to confirm.

Scenario 2: a scarce data-engineering role that needs an employer pathway

The role facts are: the U.S. entity needs the employee to develop, long term, systems related to a specified specialist degree; the employee must access the production environment, and the project goes live in three months. The candidate explains that they cannot currently work for this company and will need sponsorship in the future. The team should first determine whether the role genuinely meets the H-1B specialty-occupation and wage/LCA requirements, then confirm whether the cap/registration or another pathway applies. At the same time, list authorised candidates or internal reassignment as delivery protection. If the route has not been selected, approved or otherwise met the conditions to start work, the candidate cannot enter the production environment through a ‘trial work first’ arrangement.

Scenario 3: a product lead transferred from an overseas related company

The role facts are: a related overseas entity already has a product team, and the new U.S. office wants a lead who has worked continuously at the related entity to establish processes and manage the U.S. team, rather than merely make a short visit. The staffing card should first check the company relationship, the continuous one-year employment record within the previous three years, the U.S. role category and the new-office conditions, then have an immigration lawyer assess L-1 fit. The project can first have authorised U.S.-based staff maintain client and launch plans, and schedule the transfer only after the pathway and timetable have received professional advice. Do not treat overseas remote meetings or business visits as already having U.S. employment authorisation.

Operational fallback plan: turn uncertainty into scheduling conditions

When a pathway requires registration, selection, an application, consular processing, a request for evidence or another approval, the schedule cannot simply state ‘expected soon’. Maintain four states for each role:

• Green light: verified as able to work for this company, in this role and at this work location; may start paid work on the standard onboarding date and complete the relevant portions within the statutory Form I-9 periods. Do not misstate completing all of I-9 early as a pre-offer screening requirement.
• Yellow light: authorisation may exist, but the employer, role, location, expiry or document choice needs professional review. Before authorisation is confirmed, the candidate must not provide any labour that may amount to work; the company may only reschedule the project internally and await professional advice.
• Blue light: there is a defined sponsorship direction, such as H-1B, L-1, O-1, TN or a long-term PERM assessment, but authorisation sufficient to start has not been obtained. Assign critical milestones to green-light staff; the candidate does not undertake labour before authorisation.
• Red light: a current authorisation gap stands on its own, role restrictions have not been checked, or the team cannot explain the employer and scope of work. Before professional confirmation, do not begin work or grant sensitive permissions, and do not use nationality as a substitute reason.
• List TNC separately as a process state: where a Tentative Nonconfirmation or mismatch occurs, follow the E-Verify notice and contest process, let the employee continue working, and do not fire, suspend, cut hours, reduce pay or delay work because it is being resolved. A TNC is not itself equivalent to no work authorisation.

The project owner should also record fallback people, the maximum waiting window and conditions for rescheduling. For example, separate client communication, test environments, public-material organisation and controlled production access into different permission tiers, so that the authorisation boundary and business boundary are visible together. Reassess whenever status, employer, role, work location or project permissions change; do not automatically carry the old conclusion forward.

MANPRPOWER LIMITED service boundary

MANPRPOWER LIMITED can provide registration coordination, document preparation and support from partner organisations through its U.S. company-registration service, helping businesses organise entity, role and verification questions. It cannot provide immigration legal advice, hiring decisions, visa guarantees or conclusions about an individual's work authorisation. H-1B, L-1, O-1, TN, PERM, E-Verify disputes, worker classification, state labour and tax issues, and export controls should each be reviewed by appropriately qualified immigration lawyers, labour/tax advisers, E-Verify compliance officers or export-control advisers.

If you are building a U.S. team, keep a five-step staffing card for every role: role facts, current authorisation, sponsorship, compliance limits and a fallback plan. Enter the standard onboarding process only when the card shows green. If it shows blue or yellow, put professional review and project rescheduling into the plan. Where authorisation is absent, do not let anyone start work first.