Hiring an Immigrant? What Employers Need to Know

When filling an open role on your staff, you might find a perfect candidate who is fully qualified, fits your company culture and would make a great addition to your team.

But, there’s one potential complication – they are an immigrant.

Fortunately, this doesn’t mean it’s the end of the road for this candidate. It just means you need to make sure they are authorized to work in the U.S. and that you collect the right documentation for them.

How To Legally Verify Immigrants Are Authorized To Work in the U.S.

When hiring an immigrant, you must verify they are legally eligible to work in the United States. As an employer, the U.S. government holds you responsible for enforcing immigration laws when hiring employees. As part of this, you need to have every new hire complete Form I-9.

You will need to ensure each of your employees falls into one of these categories to be legally hired:

  • A U.S. citizen
  • A noncitizen national
  • A permanent resident of the U.S.
  • A foreign national who has been authorized to work in the U.S.

The documents your employees provide while completing Form I-9 will reveal which category they fall into. Specific documentation and identifications need to be provided when completing the form.

Employees can show one unexpired List A document. Included on List A are:

  • An unexpired foreign passport
  • Form I-94, Arrival/Departure Record, indicating F-1 nonimmigrant status
  • Form I-20 with the DSO endorsement for employment
  • Unexpired foreign passport
  • Form I-94 indicating F-1 nonimmigrant status;
  • Form I-20 with the DSO endorsement for employment.

If an employee doesn’t have an item from List A, they can then provide one unexpired item from List B to establish identity and one unexpired item from List C to establish work authorization.

Items included on List B include:

  • Driver’s license
  • ID card issued by federal, state, or local government agencies or entities. This must contain a photograph or information such as name, date of birth, gender, height, eye color, and address.
  • School ID card with a photograph
  • Voter registration card
  • U.S. military card or draft record
  • Military dependent’s ID card
  • U.S. Coast Guard Merchant Mariner Document
  • Native American tribal document
  • Driver’s license issued by a Canadian government

Items included on List C include:

  • U.S. Social Security account number card
  • Consular Report of Birth Abroad (Form FS-240)
  • Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545)
  • Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying territory of the United States bearing an official seal
  • U.S. Citizen ID Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security (DHS)

What You Can’t Do When Hiring an Immigrant

When interviewing and considering prospective employees, there are certain actions you need to legally avoid.

For one, you cannot show a preference for one of the above listed four classes of legal workers. If they fall into one of those four categories, they are eligible for employment. Excluding a candidate due to which category they fall under can be considered discrimination. On Form I-9 there is a warning against not accepting a certain type of identification or discriminating against a candidate based on the form of ID they provide.

You also cannot ask a job candidate their nationality or about their background. While you can establish they can legally work at your company, you can’t ask where they were born, where their family lives, or questioning of that nature.

What If They Can’t Legally Work In the U.S.?

If a job candidate does not have the authorization to work in the United States, you have a couple of options to pursue if you want this person on your staff.

Some options include:

  • Sponsor them for a green card: Depending on how much time, money, and effort you are willing to put into hiring this candidate, sponsoring them for a green card is one option to get them authorized to work in the U.S.
  • Pursue a temporary work visa: Certain jobs may qualify for a work visa. You need to prove that this person needs to be hired, despite their non-citizenship, and that you cannot fill the spot with a U.S. citizen. This can eliminate most jobs from temporary work visa eligibility.

 Why You Need an Immigration Attorney

When hiring an immigrant, there are certain documents you need to submit, and procedures you need to follow. Failure to do so can result in penalties for your company. To avoid any issues, hire an immigration attorney to walk you through the process and ensure you are not discriminating against any prospective employees.

Why Hire Us

When considering hiring an immigrant at your company, get help from the experts at Johnstone Adams LLC.

Ranked in the 2023 U.S. News – Best Lawyers® “Best Law Firms” list regionally in 12 practice areas, we have experts in many areas of law to give our clients top-notch representation. In business for more than a century, our firm can mix its experience with the ability to evolve with the changing times.

To get started, contact us at 844-682-7682 or info@johnstoneadams.com.

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