As you prepare to hire employees, be sure that you understand all laws and regulations surrounding employee eligibility. In particular, the Immigration and Nationality Act (INA) governs immigration and citizenship in the United States. The INA is especially relevant to small business owners since it includes provisions addressing 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 employers to verify an employee's eligibility to work in the United States. Within three days of hire, employers must complete an Employment Eligibility Verification Form, commonly referred to as an I-9 form. This requires examining acceptable forms of documentation supplied by the employee to confirm the employee's citizenship or eligibility to work in the United States. Employers 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.
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 (3) years after the date of hire or one (1) year after the date the employee's employment is terminated, 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.
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Download Form I-9 (Employment Eligibility Verification)
Provides the form that all U.S. employers are responsible for completing and retaining for each individual they hire for employment in the United States, including citizens and non-citizens.
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Instructions for Completing the I-9: Handbook for Employers
Gives comprehensive guidelines for completing Form I-9, Employment Eligibility Verification.
For complete information about using, understanding and keeping up to date with the Form I-9, visit I-9 Central. Employers 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.
Foreign Workers
Hiring and Employment
Covers foreign labor certification programs, administered in part by the U.S. Department of Labor, that permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy. These programs are generally designed to ensure that the admission of 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.
Provides information on the foreign labor certification process and how employers can apply to bring foreign workers into the U.S. for employment.
Describes the U.S. Department of Labor (DOL) certifications that are issued for permanent and temporary employment.
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 grants certification to employers to obtain special visas in order to hire foreign workers in cases where there are insufficient qualified U.S. workers available and willing to perform work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment.
Fair Employment Practices (Non-Discrimination)
The INA includes provisions that protect U.S. citizens and certain work authorized individuals from employment discrimination based upon 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:
Describes employer obligations under the Immigration Reform and Control Act of 1986, and the Immigration and Nationality Act's anti-discrimination provision.
Provides answers to commonly asked questions 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.
Gives tips to small employers concerning the employment eligibility verification process.
No-Match Letters
When an employer sends 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 the employer 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 adverse 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.
The following resource provides more information about ICE's safe harbor procedures and protecting yourself from allegations of unlawful discrimination:
Provides a plain language summary, created by the National Immigration Law Center, of ICE's proposed rule.
