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Foreign Workers & Employee Eligibility

As you prepare to hire employees, be sure that you understand all laws and regulations about employee eligibility. In particular, the Immigration and Nationality Act (INA) 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 non-discrimination. This guide provides an overview of these provisions and assistance on how to comply with the INA.

Employee Eligibility Verification (I-9 Form)

Federal law requires you, as 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 only request 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.

You do not file the I-9 with the federal government. Rather, you are required required to keep an I-9 form on file for three (3) years after the date of hire or one (1) year after the date the employee's employment ends, whichever is later. The U.S. Immigration and Customs Enforcement (ICE) agency conducts routine workplace audits to ensure that 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 the Form I-9, visit I-9 Central. You can use information taken from the Form I-9 to verify electronically the employment eligibility of newly hired employees through E-Verify. To get started, register with E-Verify 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
    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 that 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
    Provides information on the foreign labor certification process and how employers can apply to bring foreign workers into the U.S. for employment.
  • Hiring Guest Workers
    Describes the U.S. Department of Labor (DOL) certifications issued for permanent and temporary employment.
  • Wages Under Foreign Labor Certification
    Explains the Immigration and Nationality Act (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 to hire foreign workers when there are insufficient qualified U.S. workers available and willing to work at wages that meet or exceed the current wage paid for that occupation.

Fair Employment Practices (Non-Discrimination)

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

The U.S. Department of Justice enforces the INA's non-discrimination provisions, and provides the following guidance to help small businesses understand these provisions:

No-Match Letters

When you send an employee's W-2 form to the Social Security Administration (SSA), the employee's name and Social Security number are checked against SSA records. ICE will also verify the accuracy of information on I-9 forms. If either (or both) SSA or ICE 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 that the employee is ineligible to work in the U.S. In fact, firing an employee solely on the basis of a no-match 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 an employee and the federal government? Current regulations do not provide procedures that help protect an employer from allegations that he knowingly employed unauthorized workers. However, the ICE has proposed new rules that specify "safe harbor" procedures that 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, Proposed Safe Harbor Procedures for Employers Who Receive a No-Match Letter, offers more information about ICE's safe harbor procedures and protecting yourself from allegations of unlawful discrimination.