Overview: Whether sponsoring or hiring non-US citizens for employment, employers need to be aware of and comply with federal and state immigration requirements. A key aspect of immigration is the verification process where employers must verify an employee's identity and work eligibility at the outset of employment by completing the Form I-9. However, employers must strike a delicate balance between ensuring an authorized workforce and avoiding discrimination against their employees (or prospective employees) based on national origin or citizenship status. While an employer that knowingly hires or continues to employ an unauthorized individual may expose itself to steep monetary penalties, discriminating against individuals who are authorized to work based on their national origin or citizenship status may also result in similar penalties.
On the state level, employers must be aware of and comply with any state E-Verify mandates requiring employers to confirm the employee's information on the Form I-9. Several states require private businesses to become E-Verify participating employers. To that end, employers, especially multistate employers, should be aware of the E-Verify requirements in each state that they operate in.
When sponsoring a foreign national for employment, employers need to be aware of the petitioning and application process. Further, employers should consider creating an immigration policy setting forth the expectations of the employer and sponsored employee at the outset of employment and identifying which costs are the responsibility of the employer.
Trends: US Immigration and Customs Enforcement has demonstrated its commitment to its worksite enforcement strategy that prioritizes the use of criminal prosecutions against employers that use unauthorized workers as a business model; mistreat their workers; engage in human smuggling or trafficking; engage in identity and benefit fraud; launder money; or participate in other criminal conduct.
Author: Melissa A. Silver, JD, Legal Editor
Updated to reflect forthcoming new law clarifying prohibited unfair immigration-related practices.
After a series of proposed improvements to and public comment periods on Form I-9, Employment Eligibility Verification, the Office of Management and Budget has approved a revised version of the form, which should be published by November 22. In the meantime, employers may continue using the current form until January 21, 2017. After that date, all prior versions of the form will be invalid.
Updated to reflect information regarding the forthcoming revised Form I-9 and instructions.
Updated to reflect amendment eliminating the state employment verification affirmation requirement, effective August 10, 2016.
Updated to reflect increase in immigration-related penalties, effective August 1, 2016.
With the countdown to the 2016 election well underway, this podcast features a conversation about key employment law implications with Mike Aitken, the Society for Human Resource Management's vice president for government affairs.
The US Department of Justice has published an interim final rule adjusting current civil monetary penalties, which takes effect on August 1, 2016.
HR guidance on hiring immigrants.