Complying with Changing Immigration Policy: Tips for US Employers Who Employ Migrant Workers
On August 8, 2018, ICE officials served search warrants in 13 locations in Nebraska and Minnesota, arresting over 130 people according to a press release by the Department of Homeland Security. The operation targeted businesses that officials say knowingly hired and mistreated immigrants who are in the U.S. illegally. Among those arrested were 14 business owners and managers. While the general focus of law enforcement has remained honed on those working in the U.S. illegally, there are now growing concerns that law enforcement is also targeting businesses and business owners who hire immigrants who are unauthorized to work in the U.S. While this is not the first time the U.S. government has cracked down on employers of unauthorized workers it is certainly not expected to be the last. This raises the question though: How can employers insure they are in compliance with the law in regards to their immigrant workers?
The 1986 Immigration Reform and Control Act (also known as the Simpson-Mazzoli Act) makes it illegal for employers with four (4) or more employees to knowingly hire someone who entered the U.S. without the proper permission to work, or to transport people into the U.S. for the purpose of work without permission. Here’s what you need to know to remain compliant with the law:
Confirm that employees are legally able to work in the U.S. This confirmation process requires that employers submit an I-9 form for all new employees, regardless of their citizenship status. New employees must fit into one of four categories of legal workers: U.S. citizens, noncitizen national, lawful permanent resident or alien authorized to work.
Avoid discrimination based on perception of an employee’s immigration status. Employers may not inspect a potential employee’s immigration or citizenship documents prior to making a job offer. Such documents can only be requested after an offer of employment has been made. Employers are also prohibited from designating which identification documents a new employee may present from the acceptable documents list.
Terminate the employment of any employee found to be working in the U.S. This may happen due to an expired work visa or other circumstances. Employers are also liable for any undocumented workers employed by subcontractors. If you contract with a service provider and discover that the provider employs undocumented workers, you’re obligated to insist that the subcontractor terminate the employment of all undocumented workers – or you must terminate the contract.