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I Want to Hire Someone Who Is Not Authorized to Work in the United States. What Do I Do?

Bridge Team Member

Federal law protects all potential employees from employment discrimination based upon citizenship, immigration status, or national origin. (8 U.S.C. § 1324).

In order to avoid later claims of illegal discrimination, employment eligibility verification should be conducted after an offer to hire has been made. So make the offer of employment first, and then verification of authorization to work can be completed.

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the identity and employment eligibility of all employees by completing the Employment Eligibility Verification (I-9) Form, reviewing acceptable original documents showing the employee's identity and employment authorization, and keeping proper records. There are no exceptions for temporary or part-time employees, only independent contractors are exempt.

How do I know what documents to accept?

Fortunately, the employer is only required to provide the I-9 Form to the new employee. A list of the acceptable documents, as well as instructions for both the employee and employer, can be found attached to the I-9 Form. Employers are off the hook for verification of the documents provided by the employee. A good faith defense is afforded as long as the documents appeared reasonably genuine, related to the employee, and the I-9 was fully and properly completed by the employer.

What if it turns out my new employee is not authorized to work in the US?

The Immigration and Nationality Act (INA) prohibits an employer from knowingly hiring any individuals who are not authorized to work in the United States. As stated above, there is a good faith protection, but there are also established strict penalties for violations of the INA. For first time offenders, the fines can range from $250 to $3,200 per offense, per illegal employee.

Employers who want to hire an individual not authorized to work in the US, or a current foreign student, must meet specific conditions to obtain visas for their employees, which vary in length and purpose, depending on the job for which the employee or student is being considered. To obtain a visa, an employer must go through the process of sponsorship. For more information on sponsoring foreign employees, see 5 Facts HR Needs to Know About Sponsoring an H1-B Employee

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.legal.

Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a Bridge-affiliated partner attorney or another qualified legal professional.

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