The immigration debate isn't just about undocumented workers -- employers are
key players too. No matter which side of the debate you favor or what role you
play in the hiring process, job seekers of all kinds should understand the rules
that employers must follow when hiring both citizens and noncitizens.
The
Immigration Reform and Control Act (IRCA) of 1996 says employers with four or more employees may
not discriminate against noncitizens with proper authorization to work.
Employers are also responsible for verifying that employees are authorized to
work in the United States.
Employers can demonstrate compliance with IRCA by
treating all new hires -- citizens and noncitizens -- the same. Thus, many
employers now routinely ask for proof of citizenship or work authorization
documents from all new hires. According to the 'Lectric Law
Library, this includes establishing a policy of hiring only individuals who
are authorized to work; a "US citizens-only" policy is illegal except in cases
where US citizenship is required by federal, state or local law, or government
contract.
Documents Needed for Authorization to Work
Employers should complete an Employment Eligibility
Verification Form (Form I-9) for all new hires, regardless of citizenship. To
complete the form, employers must permit employees to present any document or
combination of documents acceptable by law. The list includes a US passport,
resident alien card ("green card") or a long list of documents showing identity
and authority to work, including a driver's license, an ID card with a
photograph and identifying information, US military card or draft record, Social
Security card, or an original or certified copy of a birth certificate. Not all
aliens authorized to work are issued green cards. Employers are also responsible
for keeping track of expiration dates on the documents presented.
According to the US Citizenship and Immigration Services, formerly the
Immigration and Naturalization Service, employers can terminate an employee who
fails to produce the required document, or a receipt for a replacement document,
within three business days of the date employment begins. An employee who
presents a receipt for a replacement document must produce the actual document
within 90 days after employment begins.
Employer Responsibility for Verification
Employers must examine the documents and, if they
appear to be genuine and to relate to the person presenting them, accept them.
To do otherwise could be an unfair immigration-related practice. If a document
does not reasonably appear to be genuine and/or does not appear to relate to the
person presenting it, an employer need not accept it. Contact the US Immigration and Customs Enforcement
office for assistance.
If law enforcement authorities discover an employee is not authorized to
work, employers who properly complete Form I-9 cannot be charged with a
verification violation. However, an employer cannot knowingly continue to employ
that individual. IRCA also makes it illegal to knowingly hire any alien not
authorized to work.
Hiring Nonresident Workers
Employers who want to hire someone who lives outside
the US for permanent work, must file Form I-140,
Petition for Alien Worker, and may also have to complete a labor certification
request (ETA 750) from the US Department of Labor Employment and Training
Administration's Division of Foreign Labor Certification.
Employers must file an I-129 petition
to hire foreign workers for temporary -- though not seasonal -- services or
labor, or receive training.
Hiring noncitizen seasonal workers (usually
agricultural workers) means employers must apply for temporary labor
certificates from the US Department of Labor, under the H-2A
Temporary Foreign Worker Program.
Employers who want to hire noncitizens who live outside the United States to
work temporarily in the US must show their actions will not negatively affect
the job opportunities, wages or working conditions of workers already residing
here by demonstrating there are not enough such workers available and that the
proposed wages and working conditions meet regional standards.
The employer must also actively attempt to recruit workers already residing
in the US to fill the position, including newspaper and radio advertising.
Employers must also provide free, approved housing for workers unable to go home
each day, as well as certain types of transportation, workman's compensation or
equivalent insurance and appropriate tools and supplies at no cost. Employers
must also show that the position is not open because of a strike or lockout.
If certification is granted, an employer pays a fee of $100, plus $10 for
each job opportunity certified, up to a maximum of $1,000 for each certification
granted.
