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Employer Rules for Hiring Non-US Workers

Employer Rules for Hiring Non-US Workers

Dan Woog,

March 05, 2008

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 checking on the legal status of job applicants.

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 to work temporarily in the US must show their actions will not negatively affect American workers’ job opportunities, wages or working conditions by demonstrating there are not enough American workers available and the proposed wages and working conditions meet regional standards.

The employer must also actively attempt to recruit American workers 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.

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