Foreign Workers & Employee Eligibility in the United States

Foreign Workers & Employee Eligibility

The Immigration and Nationality Act (INA) governs immigration and citizenship in the United States.

As you prepare to hire employees, be sure that you understand all laws and regulations about employee eligibility. 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.

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:

  • Business Guide to Fair EmploymentDownload Adobe Reader to read this link content
    Describes employer obligations under the Immigration Reform and Control Act of 1986, and the Immigration and Nationality Act’s anti-discrimination provision.

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.

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