Immigration and Employee Eligibility

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, and by examining acceptable forms of documentation supplied by the employee, 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 3 years after the date of hire or 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.

• Download Form I-9 (Employment Eligibility Verification)
  All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States, including citizens and non-citizens.
• Instructions for Completing the I-9: Handbook for Employers
  A comprehensive guideline for completing Form I-9, Employment Eligibility Verification.

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.

Hiring Foreign Workers

The U.S. Department of Labor enforces labor standards provisions of the INA that apply to aliens authorized to work in the United States under certain nonimmigrant visa programs (H-1B, H-1B1, H-1C, H2A).

• Hiring Foreign Workers: Compliance Assistance Materials
  This guide describes the requirements on the part of employers seeking to hire nonimmigrant aliens as well as procedures for obtaining labor certification.
• Foreign Labor Certification
  Provides information on necessary labor certifications for employers to bring foreign workers into the United States.
• Hiring Guest Workers
  Describes the U.S. Department of Labor's certifications issued for permanent and temporary employment under the following programs: Permanent Labor Certification; H-1C Nurses in Disadvantaged Areas; H-2A Temporary Labor Certification (Seasonal Agricultural); H-2B Temporary Labor Certification (Non-agricultural); and D-1 Crew members Certification.

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 discrimination. 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:

• Business Guide to Fair Employment
  This booklet describes employer obligations under the Immigration Reform and Control Act of 1986, and the Immigration and Nationality Act's anti-discrimination provision.
• Immigration-Related Unfair Employment Practices FAQs
  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.
• Verifying the Employment Eligibility of Your Employees without Committing Unlawful Discrimination
  Tips for small employers concerning the employment eligibility verification process.

No-Match Letters

When an employer sends employee's W-2 form to the Social Security Administration (SSA), the employee's name and social security numbers is checked against SSA records. The U.S. Immigration and Customs Enforcement (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 resources provide more information about ICE's safe harbor procedures and protecting yourself from allegations of unlawful discrimination:

• Proposed Safe Harbor Procedures for Employers Who Receive a No-Match Letter
  The National Immigration Law Center's plain language summary of ICE's proposed rule.
• Verifying the Employment Eligibility of Your Employees without Committing Unlawful Discrimination
  Tips for small employers concerning the employment eligibility verification process.