As an employer, you may have encountered foreign workers and immigrants who are participating in your hiring process. What are the laws for hiring those workers? How do you know if they are eligible to work for you?
The Immigration and Nationality Act (INA) is very important for small business owners to understand. It addresses non-discrimination, employment eligibility, and employment verification. Here we will talk about the best ways to follow the INA.
Employment Eligibility Verification
The way to verify an employee’s eligibility to work in the U.S. is through a form called the I-9 form. This form must be completed within 3 days of hiring a new employee. Types of identification required for the I-9 could be things such as a driver’s license or passport. As an employer, you cannot ask for any form of documentation not listed on the I-9 form.
There is no need to file the I-9 form anywhere but in your personal files. The form must be kept for either 3 years after the start of employment or 1 year after the end of employment, depending on whichever comes later. The forms are then routinely audited by the U.S. Immigration and Customs Enforcement (ICE) agency. ICE checks to make sure that you as an employer are keeping the I-9s for the appropriate amount of time and verifies that all of your employees fill out an I-9. They also check to verify that your employee’s information on their I-9 matches the information in government records.
Hiring and Employment
As an employer, you are allowed to hire a foreign employee if it is vital to the U.S. economy, but you are responsible for proving that the job needs to be filled and is not a position being taken from a U.S. citizen. This regulation was set up for a number of reasons, one of which is to ensure that foreign workers are not being paid lower wages or given worse working conditions. Adverse working conditions, as you know, could also negatively affect the job market for U.S. citizens.
To be able to hire these foreign workers, you must have a Foreign Labor Certification. This certification is a process for which you must apply.
Certain types of work, such as engineering, have a shortage of employees in the U.S. Offering these kinds of jobs makes it easier to receive your Foreign Labor Certification, because this type of labor is seen as vital to the U.S. economy.
The Immigration and Nationality Act protects those who are authorized to work in the United States from experiencing discrimination. For example, the law prevents employers from refusing to hire an authorized worker simply because of their country of citizenship. These provisions are enforced by the U.S. Department of Justice.
There are, of course, other forms required during the hiring process. One of those forms is a W-2. The Social Security Administration (SSA) and ICE will check the name and social security number of every employee who submits a W-2 form. If the information on any form submitted to the SSA does not match government records, then a no-match letter will be sent to you as their prospective employer.
These letters can be tricky, as simply firing the employee could lead to a discrimination lawsuit being filed by the employee. Check with the employee to be sure they have their correct social security number and birth name. If they made a mistake, then you could contact the SSA to correct it. If not, we recommend that you contact ICE or the SSA for further instruction.
For more information and resources, visit the SBA website. Infinity is committed to standing beside you as your small business grows. Be sure to check out our other small business tips here. Contact one of our local Commercial Insurance representatives to learn more about how Infinity is committed to your company’s success.