Immigration and Employment Eligibility FAQ
If you're the owner of a small business, it's highly likely that hiring employees will be part of your many job duties. Unfortunately, it's not as easy as just posting an ad for a job and immediately finding the perfect person to fill an open position. It can often be difficult to find a good employee, and sometimes you may need to look at hiring immigrant workers. In any case, the employment eligibility (i.e. immigration status) of all prospective employees must be checked prior to finalizing the hire.
This article offers answers to some of the most frequently asked questions when it comes to immigration and employment eligibility. If you would like more information and resources related to this topic, you can visit FindLaw's Immigration Law for Employers section.
Q: Does everyone you hire need to prove that they are legally eligible to work in the U.S.?
A: Yes. Employers are required to verify that every employee they hire is legally eligible to work in the United States. This is done by completing an Employment Eligibility Verification form (Form I-9) for each employee at the start of employment.
Q: Is an I-9 form required for all job applicants?
A: No. An employer is only required to complete an I-9 form for people that he or she actually hires. The form must be filed within three days of hiring the employee.
Q: Does an employer have the right to fire an employee who doesn't provide the required document(s) within three days of beginning his or her employment?
A: Yes. If the employee can't provide the document(s) because they were destroyed, lost, or stolen, he or she has the option of providing a receipt for replacement document(s). An employee who provides a receipt for replacement document(s) has 90 days to provide the actual document(s). Please note that an employer is required to apply the same practices and rules to all employees. Failure to do so could be interpreted as discrimination.
Q: What are the consequences for an employer who properly completes an I-9 Form for an employee, but the U.S. Immigration and Customs Enforcement (ICE) discovers that the employee is not actually eligible to work in the U.S.?
A: An employer's obligation is to file an I-9 form and verify that the document(s) presented by the employee are valid and authentic. If the employer does so, he or she will not be charged with a verification violation. In order for the federal government to impose sanctions on the employer for hiring an unauthorized worker, it must prove that the employer had actual knowledge that the worker was ineligible to work in the U.S. Keep in mind that an employer is prohibited from knowingly continuing to employ a person whom ICE has determined is not legally authorized to work in the U.S.
Q: How can an employer make sure that the document(s) an employee presents are authentic?
A: When it comes to the authenticity of document(s), the employer is simply required to examine them to see if they (reasonably) appear to be genuine, relate to the employee, and have not expired. The I-9 form provides the types of document(s) that are acceptable for purposes of employment eligibility verification. Photocopies are not acceptable; however, an employee can present a certified copy of a birth certificate instead of the original.
Getting Legal Help
An experienced immigration attorney can answer any questions you may have about hiring immigrants or the visa application process. If you have more general questions regarding your hiring practices and policies, including employment eligibility, you can contact a local employment law attorney for guidance.