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An immigration education for employers December 14 , 2007 Excerpted from Arkansas Employment Law Letter, written by attorneys at the law firm Jack Nelson Jones Fink Jiles & Gregory, P.A.
by Gary Jiles Q. The constant political debates over immigration make me nervous because as an employer, I'm uncertain how to approach the hiring process when immigrants apply for jobs. I'm certainly not opposed to hiring someone who isn't a U.S. citizen, and I want to offer a fair opportunity for all job applicants, but I also want to ensure that I'm complying with the law. Can you shed some light on the general regulations for employers with respect to hiring and employing noncitizens? A. Under the Immigration and Nationality Act (INA), you may hire and retain only people who are authorized to work in the United States. Consequently, a person's status as an immigrant doesn't automatically mean he isn't authorized to work for you. Rather, you simply need to understand and follow some basic standards on work authorization. Basic rules for hiring immigrants The INA details three basic rules for hiring procedures that all employers should follow:
Under the INA, it's illegal to hire someone who isn't authorized to work in the United States. People possessing a green card, refugees, and people seeking asylum are all work-authorized. It's also illegal to continue to employ someone who loses authorization he previously had. Be cautious, however, when verifying someone's authorization status ― you don't want to be accused of citizenship status or national origin discrimination. Citizenship status discrimination occurs when employees or potential employees are treated unequally because of their citizenship or immigration status. National origin discrimination refers to unequal treatment based on nationality, including birthplace, accent, and even language. Keep in mind that "citizens only" hiring policies are illegal in almost all cases. Using the same basic application form for all job seekers may help prevent discrimination disputes. You should have no concerns if you follow the three basic rules listed above, keep updated forms for all employees, and are familiar with and implement consistent and proper documentation procedures. Employee documentation: I-9 form You must fill out an I-9 form for all new employees, regardless of whether they are U.S. citizens. Keep the form on file for at least three years from an employee's date of hire or for one year after he leaves, whichever occurs later. Each I-9 form should provide evidence of and be kept on file with copies of proper documentation. Use caution when asking potential employees or even current employees to provide documentation, however. Potential employees must present documentation validating both their identity and their authorization to work in the United States. According to the list of acceptable documents on the back of the I-9, the employee may do that with only one document, or he may need to present two different documents, depending on what he chooses to show. As the basic rules above mention, you aren't allowed to request a specific document from the list or to ask for more documents once the employee has verified his identity and work authorization. In addition, you must have only a reasonable belief that the documents potential employees choose to show during the hiring process are genuine. For more information, you can consult the U.S. Citizenship and Immigration Services' "Handbook for Employers." To obtain a copy of the handbook or for other information about immigration and the business community, visit www.uscis.gov. Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from ARKANSAS EMPLOYMENT LAW LETTER ARKANSAS EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of Arkansas does not certify specialists in labor law, and we do not claim certification in any listed area. For further information about the content of any article in this newsletter, please contact any of the editors. ___________________________________________________________________ Additional resources on HRhero.com
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