There are many issues surrounding the employment of immigrants who are already in the United States. Employers in the United States are prohibited from knowingly hiring undocumented aliens or aliens without the proper work authorizations. They are also prohibited from continuing to employ an alien whose status has changed from authorized to unauthorized to work. In addition, employers are prohibited from discriminating against an alien based on his or her national origin or citizenship status. Employers must follow certain record-keeping requirements, as set forth in the Immigration and Naturalization Act (INA), with respect to employment of any alien.
Labor Certification
In general, both skilled and unskilled laborers seeking to enter the United States to perform work are inadmissible unless there are not sufficient workers who are able, willing, qualified, and available to perform the same work, and the employment of such laborer will not adversely affect the wages and working conditions of workers in the United States who are similarly employed. In order to obtain work as either a skilled or unskilled laborer in the United States, an alien must first obtain a "certification" from the U.S. Secretary of Labor stating these facts.
Record-Keeping Requirements
Section 274A of the INA sets forth an "Employment Verification System" by which employers are required to examine various documents of an alien who they are hiring. These documents including records establishing both employment authorization and identity.
"Knowingly" Hiring Unauthorized Aliens
An employer only violates the INA if the employer "knowingly" hires an unauthorized alien. An unauthorized alien is one who is either not a lawful permanent resident (LPR) of the United States or who does not have the proper authorization to work, regardless of whether the alien is an LPR or not. An employer knowingly hires an unauthorized alien if the employer has actual knowledge of the alien's work status or has constructive knowledge, which is knowledge that can be inferred from other facts. Constructive knowledge can be found, for example, when an employer continues to employ an alien after the alien's work authorization has expired or the employer does not complete the forms mentioned in the employment verification system in INA § 274A. Employers have a duty to ask more questions about a situation when facts arise that indicate that an alien potentially is not authorized to work.
Anti-Discrimination Provisions
Due to the penalties an employer incurs if the employer employs an unauthorized worker, the INA, in § 274B, also provides that an employer can not discriminate against any individual with respect to the hiring, firing, recruitment for a fee, or referral for a fee of the individual for employment based on the individual's national origin or citizenship status. In addition, § 274B specifies that discrimination includes an employer requiring more or different documents than necessary for employment verification purposes. This is to prevent an employer from "taking the easy way out" and avoiding the danger of hiring an unauthorized alien by just not hiring any non-U.S. citizens.
"Good Faith" Defense
If an employer is charged with an employment violation, the employer may assert that it complied in good faith with the employment verification system and did not knowingly hire an unauthorized worker. This defense would apply, for example, if the alien presented forged documents that were not obviously forged.
Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.
