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Navigating the Complexities of Employing Immigrant Workers

In today's economy, most businesses extend their boundaries beyond borders. U.S. employers find themselves hiring more foreign workers to support the U.S. workforce. When hiring foreign workers, the intricate rules of immigration law can present unique challenges.

This article aims to provide a better understanding of the complexities involved when hiring foreign workers. It aims to help employers navigate employment-based visas. It also ensures compliance with immigration and labor laws. This also gives foreign workers their rights as migrant workers in the United States.

Employment Eligibility Verification

All U.S. employers must complete the Employment Eligibility Verification Form (Form I-9). The I-9 form verifies the employment authorization and identity of people hired to work in the United States. All U.S. employers must complete this form for each employee they hire. The employer and employee complete the form.

In the form, the employee should attest to their authority to work in the United States. The employee should likewise present employment authorization documents or other documentary evidence. These documents should show proof of their identity and work authorization. The U.S. employer should check these documents and assess whether they are genuine.

Differences Between Form I-9 and E-Verify

Form I-9 should not be mistaken with E-Verify. E-Verify is an electronic online system accessible to employers. This system helps U.S. employers confirm their employee's eligibility to work. Through E-Verify, employers can compare information provided by the employee to records available from the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). Also, compared with Form I-9, E-Verify is voluntary for most employers.

Noncitizen or foreign workers should not accept U.S. employment without authorization. This rule applies regardless of a person's country of origin. Some noncitizens may have employment authorization in connection with their immigration status. These cases include those who have a permanent resident card or green card. Asylees or refugees also often get temporary work visas, which allow them to work in the United States.

But not all noncitizens fall under these categories. For other foreign workers, U.S. immigration laws force them to get employment-based visas.

Can Employers Check Immigration Status After Hiring?

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to check employees' eligibility to work in the United States. Employers should not question the employee's immigration status after hiring. But, there are certain situations where more verification is essential and lawful.

For instance, U.S. employers should re-verify employees whose work permits are about to expire. U.S. employers should also follow the guidelines set by the U.S. Citizenship and Immigration Services (USCIS).

Are Immigrant Workers Eligible for the Same Benefits as U.S. Workers?

All workers in the U.S., whether immigrant or nonimmigrant, are entitled to certain benefits. But, the eligibility of a foreign worker for public benefits is a complex legal issue. The rules vary depending on where you do business. In Florida, for example, undocumented immigrants have limited access to social services and financial aid. Meanwhile, H-1B workers have the same benefits as U.S. workers.

In December 2022, the U.S. Department of Homeland Security (DHS) issued a final rule on noncitizens getting health and other benefits. DHS clarified that noncitizens who receive government benefits will not suffer negative consequences. The rule is particularly relevant to noncitizens applying for lawful permanent residency. The DHS will not count it against them if they use health benefits. These health benefits may include Medicaid and the Children's Health Insurance Program (CHIP). Foreign employees may also apply for cash or noncash help. For instance, they can apply for pandemic assistance, disaster help, tax credits, or pensions.

The final rule issued in 2022 reverses the previous public charge rule from 2019. The previous rule discourages many immigrants from using or seeking public health benefits. They fear that seeking these governmental benefits would jeopardize their immigration status. Immigrants hesitated to seek help from the U.S. government even if their children or family members were eligible. This phenomenon also affected refugees, asylees, and noncitizens applying for legal status.

Employee's Rights Under Anti-Discrimination Laws

The U.S. Equal Employment Opportunity Commission protects immigrants from employment discrimination. The Equal Employment Opportunity Commission (EEOC) enforces these protections. EEOC is a federal agency that enforces laws that prohibit employment discrimination based on:

  • Race
  • National origin
  • Religion
  • Sex
  • Age

Most U.S. employers with 15 or more employees should follow EEOC laws. Labor unions and employment agencies should also follow this rule. Anti-discrimination laws apply to all types of work scenarios. No one should discriminate when hiring, firing, promoting, or training employees. Employers should also offer fair wages and benefits to their employees.

Discrimination Based on Ancestry

Discrimination may include discrimination based on a person's customs, looks, or language. In these cases, the person doesn't need to prove ancestral ties to a specific country or region. For instance, the person may appear Mexican and experience discrimination based on specific characteristics, even though they aren't Mexican.

Harassment Based on National Origin

Verbal or physical conduct based on one's nationality, such as ethnic slurs, is illegal. This is particularly relevant if these acts create a hostile or pervasive work environment. Or it interferes with performance at work or impacts job opportunities. Examples of this harassment are comments like, "Go back to where you came from."

Discrimination Based on Accent

Discrimination based on a foreign accent is unlawful unless the accent significantly affects job performance. For instance, if effective English communication is a requirement to do one's job. But, a migrant with a foreign accent who can communicate in English and people understand them should not face discrimination.

The Immigration and Nationality Act

The Immigration and Nationality Act (INA) has an anti-discrimination provision. This provision bans discrimination based on citizenship status. INA prohibits the following:

  1. U.S. Citizenship discrimination in hiring, firing, recruiting, or referring for a fee
  2. National origin discrimination in hiring, firing, recruiting, or referring for a fee
  3. Unfair documenting practices in the employment eligibility verification
  4. Retaliation or intimidation

U.S. Department of Homeland Security (DHS) Involvement in Immigration Employment

The DHS plays an integral part in supporting the enforcement of immigration and labor laws. They ensure the U.S. workforce complies with federal laws and the U.S. Department of Labor standards.

The DHS acknowledges that foreign workers are sometimes scared to report exploitative employers. Migrant workers often fear removal from work or other immigration-related retaliation. Because of this, the DHS offers discretion and protection to victims. This increases the chance of investigating discrimination and worksite violations. It supports the DHS's mission to hold abusive U.S. employers liable and protect U.S. workers.

Seek Legal Advice from an Immigration Attorney

Going through the process of employing foreign workers can be overwhelming. The process requires specialized knowledge, particularly about the employment of foreign workers. Seek legal advice from an immigration attorney. If you are a U.S. employer, they can help you get labor certification. Labor certification is an important document that you need when hiring foreign workers. If you are seeking employment in the U.S., they can help you understand immigration and employment laws. They can also help you look at possible avenues for legal authority to work in the United States. Immigration lawyers can also answer some of the frequently asked questions that you might have.

Suppose you have questions about your rights and protections. In that case, you can also contact the Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice.

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