Frequently Asked Questions about Immigration and Employment Eligibility

If you are a small business owner, hiring employees is most likely part of your many job duties. Unfortunately, it’s not as easy as posting a job ad and immediately finding the perfect person to fill a vacancy. It can often be difficult to find a good employee, and sometimes you may need to search for migrant workers. In either case, the employment eligibility (i.e. immigration status) of all prospective employees must be verified prior to finalizing the hire.

This article provides answers to some of the most frequently asked questions about immigration and work eligibility. For more information and resources related to this topic.

Q: Do all employees have to show that they are legally eligible to work in the United States?

TO: Yes. Employers are required to verify that each employee they hire is legally eligible to work in the United States. This is done by completing an Employment Eligibility Verification form (Form I-9) for each employee at the start of employment.

Q: Is an I-9 form required for all job applicants?

TO: No. An employer only needs to complete an I-9 form for the people it hires. The form must be submitted within three days of hiring the employee.

Q: Does the employer have the right to fire an employee who does not provide the required documents within three days of starting employment?

TO: Yes. If the employee is unable to provide the documents because they were destroyed, lost or stolen, they have the option of providing a receipt for the replacement documents. An employee who provides a receipt for replacement documents has 90 days to provide the actual documents. Keep in mind that an employer must apply the same practices and rules to all employees. Failure to do so could be construed as discrimination.

Q: What are the consequences for an employer who correctly completes an I-9 form for an employee, but the US Immigration and Customs Enforcement (ICE) Find out that the employee is not eligible to work in the US?

TO: The employer’s obligation is to file an I-9 form and verify that the documents presented by the employee are valid and authentic. If the employer does, he or she will not be charged with a verification violation.

In order for the federal government to impose penalties on the employer for hiring an unauthorized worker, it must prove that the employer had actual knowledge that the worker was not eligible to work in the U.S.

Note that an employer is prohibited from knowingly continuing to employ a person who has been determined by ICE to be not legally authorized to work in the U.S.

Q: How can an employer ensure that the documents an employee presents are authentic?

TO: When it comes to the authenticity of the documents, the employer simply has to examine them to see if they appear (reasonably) authentic, refer to the employee, and have not expired. Form I-9 provides the types of documents that are acceptable for employment eligibility verification purposes. Photocopies are not acceptable; however, an employee may present a certified copy of a birth certificate in place of the original.

Legal guidance

An experienced immigration attorney can answer any questions you may have about immigrant recruitment or the visa application process. If you have more general questions regarding your hiring policies and practices, including eligibility for employment, you can contact a local employment law attorney for guidance.

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