If you’ve recently jumpstarted a business, then the laws pertaining to hiring practices may seem foreign to you (pun intended). You must follow many rules and regulations before and after you bring a new team member aboard, especially when it comes to hiring foreign workers in the United States who were born in another country. Whether you’ve recently found yourself in this position or you’re proactively preparing yourself for future scenarios, there’s a lot to learn. We’ve consolidated the XX most important tips to help you maintain legal compliance with so you can stay in good standing with the federal government.
Understand Employment Eligibility in the U.S.
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Any entrepreneur who’s scaling a business knows they need to hire a team of employees to take on the increased workload. But if it’s your first time starting a company, you might not be aware of the legal considerations involved with the hiring foreign workers process. In pursuit of profits, many bright-eyed business owners tend to rush into decisions they later regret because they failed to verify the individual’s employment eligibility.
According to the Immigration and Nationality Act (INA), employers are required to confirm the work authorization for every employee within three days of hiring with Form I-9. U.S. Immigration and Customs Enforcement (ICE), as part of the Dept. of Homeland Security, is the law enforcement agency tasked with ensuring that you fulfill your responsibility to protect the wages and working conditions of American workers.
ICE agents check to see if you’ve collected and kept these documents for the appropriate amount of time (three years after the start of employment, or one year after the end of employment). ICE also verifies that the employee’s reported information matches the government records on file.
You probably didn’t envision yourself playing a role in immigration enforcement when you first set out on an entrepreneurial conquest. Still, in the eyes of the U.S. government, it’s an important part of the job. You’re expected to review the submitted documents to confirm the prospective hire falls into one of four classes of legal workers:
- U.S. citizens
- Noncitizen nationals
- Lawful permanent residents
- Aliens authorized to work
Confirm the Authorized Work Status for All New Hires
Note that INA rules apply to all workers in the United States, not just foreign ones. That’s why it’s a good idea to include required employment verification within your standard company policy as a reminder to request an acceptable form of identification from each hire.
If not, you could be held liable for “constructive” or “actual knowledge” of a foreign employee’s non-authorized work status—and you may face expensive penalties as a result.
Follow Anti-Discrimination Laws During the Hiring Process
Here’s where things get complicated: the law requires employers to categorize their employees by citizenship. However, the law also prohibits you from making hiring decisions based on a person’s citizenship status or country of origin. So, while adhering to INA guidelines, be sure to adhere to all labor laws so you can avoid legal troubles with a different government agency.
The Equal Employment Opportunity Commission (EEOC), overseen by the Dept. of Labor, enforces anti-discrimination laws designed to protect employees in the workplace. By their book, an employer’s preference for one legal working-class over another could be construed as illegal discrimination.
Say, for example, you need a couple of construction workers to renovate a pizza joint in the heart of the Windy City. You request identification to confirm each person’s employment eligibility and learn that one person has their green card, while the rest of the crew are considered to be noncitizen U.S. nationals.
Maybe you thought hiring that individual would demand additional paperwork that you hope to avoid and decide to rescind the job offer. But even if the decision was made based on skill or experience, you can expect an immigration lawyer in Chicago to visit you should they seek professional representation for their legal rights.
Form I-9 includes an “Anti-Discrimination Notice” to warn employers against specifying which work authorization documents they will accept. The notice is boxed for emphasis, but it’s worth saying again: the discrimination of foreign workers is illegal.
Featured Image by Gerd Altmann from Pixabay