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The immigration issue has been at the forefront of the news in recent years as the government grapples with an unprecedented number of undocumented workers and illegal aliens living in the U.S. But make no mistake: The issue of immigration is more than just a worker problem. Understanding the immigration laws and how they affect you and your business is a vital part of making sure your business doesn’t run afoul of current legislation.
Here are a few key components you need to bear in mind when hiring employees for your business:
Both citizens and non-citizens must receive the same treatment during the hiring process. To ensure compliance, ask all hires for proof of citizenship or work authorization documents, not just those you “suspect” of being non-citizens. Avoid establishing a policy of hiring only U.S. residents, a practice that is in violation of civil rights and other laws; instead, establish a policy for individuals who are authorized to work in the U.S.
You must fill out an Employment Eligibility Verification Form (otherwise known as Form I-9) for any new employee, including those who are U.S. citizens. In order to be verified, employees must be allowed to submit any approved documents (or combination of documents), including a U.S. passport, green card, Social Security card, birth certificate (original or certified copy) or military ID card. You can find a complete list at the U.S. Citizenship and Immigration Services (USCIS) website. As an employer, you must also keep track of expiration dates on the documents provided. If a worker fails to present required documents or show proof that he or she has applied for a replacement document within three days of the date employment begins, his or her employment may be terminated.
If the documents appear to be genuine, you must accept them; however, if a document appears fraudulent or does not appear to relate to the person presenting it, you do not need to accept it. Contact your attorney or the U.S. Immigration and Customs Enforcement office for advice on how to handle the issue. If enforcement authorities determine the person is not authorized to work, as long as you’ve completed Form I-9, a verification violation cannot be leveled against you. You cannot knowingly employ a person who violates U.S. worker eligibility laws, and you cannot hire a person who doesn’t have proper authorization to work.
If you would like to hire someone for permanent work who resides outside the U.S., you need to file Form I-140 (“Petition for Alien Worker”); for temporary work, the I-129 petition applies. You also may need to file a labor certification request from the U.S. Department of Labor (USDOL). To hire noncitizen seasonal workers, the requirements are more complex and extensive. In addition to applying temporary labor certificates from the USDOL, you must demonstrate that hiring these individuals won’t have a negative impact on the job opportunities, wages and working conditions of workers who are U.S. citizens. You’ll also need to show that you’re actively trying to recruit workers already living in the U.S. to fill the position.
Keeping up on immigration law is important to ensuring your business remains compliant and avoids costly fines and other penalties. The best way to make sure you remain in compliance if to discuss your concerns and hiring issues with a skilled attorney.