Foreign Workers, Immigration, and Employee Eligibility

It’s a lot to keep track of, but it’s important to understand these work provisions.

By Alexandra Walsh

Immigration to the United States was the subject of significant public and political debate as was evident in the recent presidential race. In 2014, immigrants accounted for nearly 17% (26.7 million) of the 159.5 million workers in the civilian labor force, according to the Migration Policy Institute.

As you prepare to hire employees, the Small Business Administration stresses the importance of employers understanding all the laws and regulations about employee eligibility. In particular, it is critical to understand the Immigration and Nationality Act, which governs immigration and citizenship in the United States.

The INA is especially important to small business owners because it addresses employment eligibility, employment verification, and nondiscrimination.

This column provides an overview of these provisions and resources on how to comply with the INA.

Employee Eligibility Verification (I-9 Form)

According to the Small Business Administration, federal law requires an employer to verify an employee’s eligibility to work in the United States. Within three days of hiring a new employee, you must complete an employment eligibility verification form—commonly referred to as an I-9 form.

This requires examining acceptable forms of the employee’s documentation to confirm his or her citizenship or eligibility to work in the United States. You can request only documentation specified on the I-9 form. Employers who ask for other types of documentation not listed on the I-9 form may be subject to discrimination lawsuits.

The INA is especially important to small business owners because it addresses employment eligibility, employment verification, and nondiscrimination.

You do not file the I-9 form with the federal government. But you are required to keep an I-9 form on file for three years after the date of hire or one year after the date the employee’s employment ends, whichever is later.

The U.S. Immigration and Customs Enforcement agency conducts routine workplace audits to ensure employers are properly completing and retaining I-9 forms, and that employee information on I-9 forms matches government records.

For complete information about using, understanding, and keeping up to date with Form I-9, Employment Eligibility Verification, visit I-9 Central at www.uscis.gov/i-9-central.

You can use information taken from Form I-9 to verify electronically the employment eligibility of newly hired employees through E-Verify. To get started, register with EVerify to virtually eliminate Social Security mismatch letters, improve the accuracy of wage and tax reporting, protect jobs for authorized workers, and help maintain a legal workforce.

Hiring and Employment

Labor laws and foreign workers
(www.foreignlaborcert.doleta.gov)

This link covers foreign labor certification programs, administered in part by the U.S. Department of Labor, that permit U.S. employers to hire foreign workers, temporarily or permanently, to fill jobs essential to the U.S. economy. These programs are generally designed to ensure allowing foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.

Foreign labor certification
(www.foreignlaborcert.doleta.gov)

At this link, information is provided on the foreign labor certification process and how employers can apply to bring foreign workers into the country for employment.

Hiring guest workers
(www.doleta.gov/business/gw/guestwkr)

This link describes the U.S. Department of Labor certifications issued for permanent and temporary employment.

Wages under foreign labor certification
(www.foreignlaborcert.doleta.gov)

Explained here is the Immigration and Nationality Act, the INA, which allows U.S. employers to hire foreign workers on a temporary or permanent basis to perform certain types of work.

The U.S. Department of Labor’s Employment and Training Administration generally certifies employers to obtain special visas in order to hire foreign workers when there are not enough qualified U.S. workers available and willing to work at wages meeting or exceeding the current wage paid for the occupation.

Fair Employment Practices (Nondiscrimination)

The INA includes provisions that protect U.S. citizens and certain work-authorized individuals from employment discrimination based on their citizenship or immigration status. The INA protects all work-authorized individuals from discrimination based on national origin, from unfair documentary practices relating to the employment eligibility verification process, and from retaliation.

The U.S. Department of Justice enforces the INA’s nondiscrimination provisions, and provides the following guidance to help small businesses understand these provisions.

Business guide to fair employment
(www.justice.gov/sites/default/files/crt/legacy/2011/ 05/20/ee_factsfaces_english2.pdf)

This link goes to a PDF describing employer obligations under the Immigration Reform and Control Act of 1986, and the Immigration and Nationality Act’s anti-discrimination provision.

Immigration-related unfair employment practices FAQs
(www.justice.gov/crt/office-special-counselimmigration-related-unfair-employment-practices)

Under the Featured Items section is a link to Frequently Asked Questions that provide information about anti-discrimination provisions in the INA, and the role of the Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices in enforcing anti-discrimination cases.

Verifying the employment eligibility of your employees without committing unlawful discrimination (www.justice.gov/crt/form-i-9-and-e-verify)

Tips are offered here to small employers concerning the employment eligibility verification process.

No-Match Letters

When you send an employee’s W-2 form to the Social Security Administration, the employee’s name and Social Security number are checked against SSA records. U.S. Immigration and Customs Enforcement, commonly referred to as ICE, will also verify the accuracy of information on I-9 forms. If either or both cannot verify employ information, a “no-match” letter will be sent to you indicating that the employee’s name or Social Security number did not match government records.

If you get a no-match letter for an employee, avoid taking immediate action against the employee. A no-match letter simply says the employee’s information did not match government records—and is not necessarily an indication the employee is ineligible to work in the United States.

In fact, firing an employee solely on the basis of a nomatch letter may open you up to a discrimination lawsuit. At the same time, if you do not follow up on a no-match letter in a timely manner, you may be cited for knowingly employing an unauthorized worker, which is a violation of federal law.

So how do you act on a no-match letter while protecting yourself from legal action from both the employee and the federal government?

Current regulations do not provide procedures that help protect an employer from allegations he or she knowingly employed unauthorized workers. ICE, however, has proposed new rules specifying “safe harbor” procedures an employer should follow when receiving a no-match letter. These new rules do not necessarily protect the employer from allegations of discrimination.This resource, Safe Harbor Procedures for Employers Who Receive a No-Match Letter (www.nilc.org/wp-content/uploads/2015/12/no-match-DHS-finalrule-summary-2008-11- 24.pdf) offers more information about ICE’s safe harbor procedures and protecting yourself from allegations of unlawful discrimination.


Alexandra Walsh is the vice president of Association Vision, a Washington, D.C.–area communications company. She has extensive experience in management positions with a range of organizations.

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