Raids by U.S. Immigrations and Customs Enforcement officers illustrate the worst that can happen when employers ignore or knowingly disregard labor laws regulating the employment of non-citizen workers. Resulting arrests can be devastating for the employees and the community and financially ruinous for the employer. News of such raids leave many employers skittish about hiring non-U.S. citizens.
While the desire by U.S. citizens to take care of their own first is understandable, non-citizens have much to offer American workplaces -- often providing particular expertise that may be difficult to find, an eagerness to take jobs many Americans would refuse and contributions to local, state and federal tax bases that are equal to their citizen counterparts. If that isn't enough to encourage U.S. employers to hire non-citizens, federal law prohibits discriminating against non-citizen workers who are residing legally in the United States.
Assuring prospective (and current) employees qualify for employment in the U.S., though, is not as cumbersome as many may think. In fact, compliance steps are the same for all employees, regardless of citizenship status. It's as simple as completing Form I-9 from the Department of Homeland Security.
Required for all employees, Form I-9 verifies employment eligibility. Employers complete the form for each new employee upon the date of hire. The one-page form asks for basic employee information such as name, address and Social Security number and requires preparers to check a box indicating whether the employee is a citizen, lawful permanent resident or alien authorized to work until a given date.
It then asks employers to examine the employees' documents to verify status and includes a list of acceptable documents for doing so. Employers can download the form and instructions at the United States Citzenship and Immigration Services Web site.
Employers need to examine those documents carefully to satisfy themselves the materials are genuine and relate to the person being hired.
Upon completion, it's wise to keep all I-9 forms together in one location instead of each individual employment file, especially for larger companies. That will ease the process should the employer be audited. It also helps to have a policy about who will handle completion and retention of the forms.
Because it is against the law to hire undocumented workers, doing so is a crime that carries civil fines and the potential for jail time. Civil fines run $275 to $11,000 per individual depending on the number of workers and prior violations. If a company shows a pattern and practice of hiring people here illegally, criminal fines can run up to $3,000 per worker and penalties can include six months imprisonment.
Employers interested in hiring people who are not already residing legally in the U.S. will need to take further steps and complete additional forms.
- Form I-140 (Petition for Alien Worker) must be completed by employers who want to hire non-citizens for permanent work. In some cases, these employers will also need to complete a labor certification request from the U.S. Department of Labor Employment and Training Administration.
- Form I-129 (Petition for a Nonimmigrant Worker) must be filed in order to hire foreign workers for temporary (but not seasonal) work. In these instances, employers will also need to apply for temporary labor certificates from the U.S. Department of Labor.
Before actively seeking non-citizens for temporary work in the U.S., employers must work first to recruit American workers. Only when that fails may they recruit non-citizen workers, and employers need to be prepared to show their actions will not negatively affect opportunities for American workers.
For more information on hiring foreign workers, contact Ellen Frantz at 608-784-5678.