Labor Laws for Employers: Hiring Refugees, Visa Holders, and Other Non-Citizens

By Ashley Cassels

Who Is Eligible to Work in the US?

The US Customs and Immigration Service (USCIS) website explains that before any person can be employed in the U.S., they must prove to an employer that they can legally work here.  In order to be legally employed, workers must be able to provide documentation that shows evidence of their ability to work in the United States.

• U.S. citizens can meet this requirement by showing proof of their United States citizenship and a valid identity document.

• Permanent Residents can meet this requirement by showing their permanent resident card.

• Refugees can meet this requirement for initial employment by showing their Form I-94 and an identity document but will need to follow up with other documentation.

• Asylees(persons granted asylum in the U.S.) can meet this requirement by presenting an unrestricted social security card and an identity document.

• Certain nonimmigrant visa holders who are eligible to work based upon employment with a specific employer can show their Form I-94 Arrival and Departure record with their nonimmigrant visa, which will indicate the name of the employer with whom they are authorized to be employed.

What Steps Should Employers Take to Verify Work Status

The Immigration and Nationality Act (INA) prohibits employers from knowingly employing individuals who are not authorized to work in the United States. To comply, employers must verify the identity and employment eligibility of every employee hired after November 6, 1986 - including US citizens. 

Within three days of hire, employers must complete an Employment Eligibility Verification Form, commonly referred to as an I-9 form, examine acceptable forms of documentation supplied by the employee and confirm the employee's citizenship or eligibility to work in the United States.  Employers do not file the I-9 with the federal government. Rather, an employer is 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 is terminated, whichever is later. 

In addition to verifying employment eligibility, there are other steps employers must take when hiring employees including registering with your states’ new hire reporting program, obtaining insurance and registering for unemployment taxes.   For details on employment verification and other hiring responsibilities, read Ten Steps to Hiring New Employees.

Understanding Labor Laws and Avoiding Discriminatory Practices

When hiring new employees, you have a responsibility to verify work status and you will likely need additional background information to help you make a hiring decision. 

However, you do not have unlimited rights to dig into an applicant's background and personal life.  Employees have a right to privacy in certain areas; a right they can enforce by suing you. 

One type of discrimination, citizenship status discrimination, occurs when an employer treats individuals differently because of their citizenship or immigration status.  To help protect the rights of documented workers, the Justice Department enforces the INA’s unlawful discrimination laws by requiring violating employers to pay back wages and civil penalties and to hire or rehire workers. 

For details on the information employers may consult as part of a pre-employment check, and the laws governing their access and use in making hiring decisions, read Pre-Employment Basics and Background Checks.

Tax Benefits

There may be tax benefits for your business if you hire individuals who qualify for certain target groups.  The Work Opportunity Tax Credit is a federal tax program that offers incentives to employers who hire individuals from twelve target groups who have consistently faced significant barriers to employment. Refugees or asylees may be included in this group.  For more information, visit the Department of Labor’s guide to the Work Opportunity Tax Credit.

Related Resources

• For more information on refugee work status, visit the U.S. Office of Refugee Resettlement’s website
• Business Resources for Employers – Labor Law Guide
• Refugee and Immigration Servicesfrom the Department of Homeland Security