Do you know what the rules are in hiring immigrants? This can be a touchy topic with serious consequences should you handle it incorrectly. The Immigration and Nationality Act (INA) is the federal law governing almost all immigration matters. The INA makes it illegal for businesses to knowingly hire undocumented workers and requires employers to verify their employees' identities and work eligibility using the I-9 form.
Under the INA, job applicants must provide their potential employer with documentation of their identity and authorization to work in the United States. There are several combinations of legally acceptable documents that can be used for proof. These combinations are listed on the back of the I-9 form, which must be completed for every employee, regardless of national origin, including U.S. citizens. An employer's failure to verify identity and employment eligibility has grave legal consequences.
Documentation can establish both identity and employment eligibility in one document, such as a passport, or it can be two documents, one of which establishes identity and one of which establishes employment eligibility. An example of the latter would be documenting identity with a driver's license and employment eligibility with a birth certificate.
The employer can accept any document(s) the prospective employee presents, as long as the documents prove both identity and work authorization and are included in the list on the back of the I-9 form. If the documents appear to be genuine, they are acceptable. Establishing the authenticity of a document is not the business owner's responsibility.
What is less commonly known about the INA is that it also prohibits job discrimination based on immigration status. The anti-discrimination provisions are intended to make certain that all employees and job applicants are treated equally, whether or not they are U.S. citizens.
The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), a component of the Civil Rights Division of the Department of Justice, enforces the anti-discrimination provisions of INA and educates the public about immigration-related employment discrimination. The OSC reviews charges of discrimination based on national origin or citizenship status. The penalties include collecting back pay to compensate victims of employment discrimination and assessing civil penalties for violations of the anti-discrimination provisions. The OSC protects all U.S. citizens, legal permanent residents, refugees, and asylees.
To avoid problems with the OSC, treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, and firing. In advertising jobs, stay away from "citizen only" or "permanent resident only" wording. In most cases, it is illegal to require job applicants to have a particular immigration status. Give out the same job information over the telephone to all callers, and use the same application form for all applicants. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.
Note that U.S. citizenship, or nationality, belongs not only to persons born in the United States but also to all individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. Citizenship is granted to legal immigrants after they complete the naturalization process.
