Immigration law touches far more than whether someone has the right to enter or remain in the United States. Employers must confirm an employee’s eligibility to work in the United States, and they cannot discriminate against employees or applicants based on their citizenship status.
Employers can benefit from ongoing consultations with an immigration lawyer so they can comply with the law and understand the legal requirements regarding immigration status verification. At the same time, they can discuss the other possible implications of requesting information about citizenship status and related information during the hiring process or from employees.
Further, if an employee or employer faces allegations of violating immigration work laws, they should always contact an immigration attorney immediately.
The Employer Must Verify Eligibility to Work in the United States
A core employer requirement is to verify the prospective employee’s eligibility to work in the United States before they hire them. This requirement comes from the Immigration Reform and Control Act and applies to all employees, regardless of their size.
Both the employer and employee must fill out parts of the I-9 form. The employer must collect documents from the employee. Most often, these documents include a passport and a driver’s license. However, some employees may hold green cards but not a United States passport. Alternatively, the prospective employee can also present their permanent resident card and a government-issued ID card (if they do not have a driver’s license).
Employers cannot hire employees if they do not know they qualify to work in the United States. Similarly, the employer cannot continue to employ someone if they come to learn that they cannot work in the country.
The Employer Could Face Steep Fines for Breaking the Law
Employers can face strict penalties and fines if they fail to comply with the requirements for verifying employment eligibility. Currently, the employer can face fines of $2,789 for each paperwork violation. Thus, employers can face substantial fines if they hire many workers without verifying their eligibility.
In addition, the employer can face a fine of up to $5,589 each time they employ someone ineligible to work. The fine rises on the second offense. The government recently raised the applicable penalties in June 2024.
The fines can come closer to the maximum if the employer knowingly accepted or used a false document to meet their requirements. The same applies if the employer counterfeits documents to allow prospective employees to begin work.
The individual company employees responsible for the task can also face personal consequences. The Department of Homeland Security enforces the law, underscoring the seriousness with which the government views verification requirements.
Some employers, specifically all government contractors and federal government employees, may need to use the E-Verify system when hiring employees. Some states even require the use of E-Verify when hiring their own employees.
Federal Law Prohibits Discrimination Based on Citizenship Status
The same law that imposes the verification of employment eligibility requirements also protects prospective employees. Specifically, employers cannot discriminate against employees based on their citizenship status. The law makes national origin a protected class regarding treatment on the job. This prohibition extends to hiring and firing decisions, as well as promotions and other allocations of job benefits.
Employees or prospective employees who believe that they have experienced discrimination or harassment in hiring or on the job can take action the same way as any person.
They can file a claim with the Equal Employment Opportunity Commission, which will conduct its own review of the case. The EEOC decides whether it wants to take the case and file the lawsuit on behalf of the claimant. They might try to mediate a resolution between the worker and the company.
If the EEOC determines they do not want to take the case, the worker may file a lawsuit in federal court. Often, that is the best possible outcome for workers because they have some degree of control over their case.
In other words, although an employer must verify the worker’s status before they begin work, they cannot consider citizenship status when making a hiring decision.
Some states even have laws prohibiting discrimination against employees based on immigration status (even though employees must qualify to work in the United States).
Employers Should Be Careful When Asking About Immigration Status
Note that the employer can ask about a prospective employee’s immigration status during the interview process. After all, the worker must qualify to work in the United States, and an employer cannot easily make a hiring decision about someone who cannot eventually begin work because of their immigration status.
Nonetheless, employers must be careful about when and why they ask for this information because it can open them up to a lawsuit. If an employer does not hire an applicant for the job, the applicant may conclude that the employer illegally based the rejection on citizenship status.
When a Business or Employee May Need an Immigration Attorney
Employers need immigration lawyers to help them comply with federal and state laws. They can face enforcement action from the federal government and lawsuits from employees and applicants. They can find themselves in a difficult position regarding immigration law, often feeling like the law places them between a rock and a hard place.
Keeping an immigration lawyer on retainer can assist employers with ongoing compliance requirements and in special situations.
Applicants and workers may also need an immigration lawyer if they believe that they were the victims of illegal conduct when they applied for a job or when they were at work. They may need to file a discrimination lawsuit, which can qualify them for financial compensation for any wrongful conduct.
Contact an immigration attorney at the first possible opportunity when an employer discriminates against you.