Hiring Legal Immigrant Workers

One of the decisions manufacturers have to make when hiring new employees is whether the advantages of hiring a legal immigrant outweigh the associated risks. While an employer cannot discriminate when hiring a new employee based on national origin or citizenship status, the Immigration Reform and Control Act (IRCA)¹ and state laws require an employer to take measures to ensure that it is in compliance with applicable employment laws when hiring new employees.

Hiring immigrants can pose a number of possible advantages and disadvantages.

Advantages

Reduced costs. Immigrants may be willing to work for a lower wage than workers born and raised in the United States because of different economic goals.

Business expansion. Immigrant workers may provide insight and a foothold in new markets. Also, your company may gain a broader perspective and knowledge of different cultures.

Workforce diversity. Hiring immigrants can help a business diversify its workforce and stay on the right side of antidiscrimination laws.

Filling positions. Immigrants may fill periodic and permanent shortages in the labor force. Immigrants may also perform services that U.S.-born workers don’t want to fill.

Skilled workers. Immigrants may fill high-demand positions that require highly skilled workers.

“To avoid the appearance of discrimination, employers should treat all applicants and new hires—both citizens and noncitizens—the same.”

Disadvantages

Legal . Federal and state laws place high demands on employers to ensure that workers have all the necessary documentation to work legally in the United States. Failure to comply with the laws can result in harsh penalties.

Discrimination. If there is a demonstrated practice of hiring immigrants over native-born American citizens, there is the risk of being penalized for discrimination.

Employee resistance. Hiring immigrants may be met with resistance from the current workforce, and there may be difficultly assimilating immigrants into the work culture.

Language barriers. Hiring immigrants may present a challenge to conducting business if there is a language barrier between the management and the workforce.

Legal and accounting fees. Ensuring compliance with immigration laws requires the hiring of lawyers and accountants, which can add costs to the hiring process.

Should an employer decide to move forward with hiring an immigrant employee, IRCA requires verification that employees are authorized to work in the United States. In addition, state laws may require employers to use certain processes to verify citizenship. To avoid the appearance of discrimination, employers should treat all applicants and new hires—both citizens and noncitizens—the same. Employers should request proof of citizenship or work authorization documents from all new hires. A “U.S. citizens–only” policy is illegal, except in cases where U.S. citizenship is required by federal, state, or local law, or by government contract.

Documents Needed for Authorization to Work

Employers should verify all employees through the Employment Eligibility Verification Form (Form I-9), regardless of citizenship. To complete the form, employers must permit employees to present any document or combination of documents acceptable by law. The list includes a U.S. passport, resident alien card (“green card”), or a long list of documents showing identity and authority to work, including a driver’s license, an ID card with a photograph and identifying information, U.S. military card or draft record, Social Security card, or an original or certified copy of a birth certificate. If an employee fails to produce the required document or a receipt for a replacement document within three business days of the date employment begins, the employer may terminate the employee. An employee who presents a receipt for a replacement document must produce the actual document within 90 days after employment begins.

Not all immigrants authorized to work in the United States will have a green card. There are various visas workers may obtain to work in the United States, including an H-1B visa and a TN visa. Employers are also responsible for keeping track of expiration dates on the documents presented.

Employers must examine the documents and, if they appear to be genuine and to relate to the person presenting them, accept them. To do otherwise could be an unfair immigration-related practice. If a document does not reasonably appear to be genuine and/or does not appear to relate to the person presenting it, an employer need not accept it. An employer cannot knowingly continue to employ an individual who does not have proper documentation. IRCA also makes it illegal to knowingly hire any alien not authorized to work.

The Facts

State Laws

Various state laws may require employers to use specific processes when verifying that an employee is allowed to work in the United States. Employers should check state laws to confirm the process.

Penalties

Penalties vary based on the number and severity of the violation, and can include monetary penalties and, in severe cases, imprisonment. In determining the extent of the penalty to assess, several factors will be taken into account, including 1) the size of the employer’s business, 2) the good faith of the employer (for instance, in attempting to keep accurate and up-to-date I-9 forms), 3) the seriousness and extent of the hiring or record-keeping violation, 4) the involvement of the unauthorized employee in the verification process, and 5) the employer’s history of previous violations.

To avoid penalties, employers should self-audit their I-9 compliance at least once a year to catch problems and establish good-faith efforts to comply with IRCA should the employer ever be audited. In addition, employees should be properly trained in preparing the I-9, and I-9s should be easily accessible.

Dealing With an Audit

In the event of an audit, various steps should be taken. Employees should first check the credentials of the auditors. If everything is in order, the employee should immediately contact the head of human resources, the CEO, or other person designated to handle such . The designated person should in turn immediately contact legal counsel. In some cases, the auditors may have served the wrong party, so legal counsel can help to ensure that the employer is the subject of the audit.

Employees should avoid discussing anything with the auditors. Employees should not provide any documentation to the auditors unless directed by the employer’s designated person or legal counsel. Only the designated person and legal counsel should interact with the auditors. If I-9s must be provided, make copies before providing the documents to the auditors. At all times during the audit process, employees, employers, and counsel should be polite and professional with the auditors.

Legal Help

Hiring non-U.S. citizens to work can be a complex process, from hiring a new employee and going through the visa process with a potential employee to surviving an audit. It is strongly advised that employers work with legal counsel to help negotiate the process.

¹ The Immigration Reform and Control Act (IRCA), passed in 1986, prohibits an employer from knowingly hiring, recruiting, or referring illegal aliens for work in the United States. The law also extends to employers who discover that an employee is an illegal alien after hiring.

David P. Goch, AICC’s general counsel, is a partner at Webster, Chamberlain & Bean LLP (WCB). He may be reached at 202-785-9500 or dgoch@wc-b.com.

John R. Strout is a senior associate with WCB. He may be reached at jstrout@wc-b.com.