How to Cover Your Bases When Hiring Foreign Workers

by Tim Parker

4 min read

An estimated 8 million unauthorized workers were employed in the U.S. in 2010, constituting 5.2 percent of the nation’s labor force, according to a 2013 report by the Migration Policy Institute. Although it can be tempting to hire undocumented immigrants to undercut the competition, small-business owners who employ ineligible workers not only be fined and face jail time, but also find themselves the subject of bad press.

Multiple federal government agencies want to know that your employees are eligible to work in the United States. Here’s how to make sure they are.

Complete and Keep I-9 Forms

Federal law makes it your responsibility to verify an employee’s eligibility to work in the United States. Within three days of hiring any employee — or on the first day, if the person will be employed for less than three days — you must complete an Employee Verification Form, known as an I-9.

You are required to keep an I-9 form on file for each employee. You do not submit them to any agency, but you may face fines and other penalties if you can’t produce the forms for inspection.

Download the form from the U.S. Citizenship and Immigration Services website. The employee must complete section 1, and you, the employer, must complete section 2. The completion of section 2 requires that you examine acceptable forms of documentation, such as a Permanent Resident Card, driver’s license, school ID, or employment authorization document issued by the Department of Homeland Security.

It’s possible to open yourself to a discrimination lawsuit if you don’t follow the guidelines of this form.

Here are few ways to remain non-discriminatory:

1. Complete the form after the employee is hired. You may not ask potential employees to complete the I-9 form before hiring them.

2. Don’t ask for a “green card.” The I-9 form allows employees to present any one or two of the documents listed as acceptable in order to prove their eligibility. You may not require certain documents from the list.

3. Be consistent in your verification procedures. Do not treat foreign workers differently than domestic ones. Every new hire should complete the I-9 form, and your compliance activities should be identical in every situation.

4. Don’t refuse to accept a document based on expiration date. If the document is already expired, it’s ineligible. But if the expiration date is close, you cannot refuse to accept the document to satisfy the requirements for the I-9. It will be your responsibility to request a new copy of the document once the expiration date of the original copy passes.

Ask for a Social Security Number

Every employee claiming to be a U.S. citizen is required to obtain a Social Security number, but a worker does not need the number in order to be hired. He or she must, however, be in the process of obtaining an SSN and provide proof of application.

You can accept a letter from the Social Security Administration saying that your new hire has applied for an SSN. Keep the letter in the employee’s file along with their I-9. If the worker doesn’t have this letter, record his or her full name, home address, date and place of birth, father’s full name, mother’s full maiden name, gender, and the date that he or she applied for a number.

Temporary workers authorized by the Department of Homeland Security to work in the United States are also eligible to receive a Social Security number.

The IRS requires that you report employee wages on a W-2 form that includes his or her Social Security number. If, at the time of filing, the employee has not received an SSN, include it as 000-00-0000 if you’re filing electronically or write “applied for” on paper forms. When you receive the SSN, file a W-2c [PDF] to report the worker’s number.

Enroll in the E-Verify System

You may use the U.S. Citizenship and Immigration Services E-Verify system to assure that every person you’re hiring is eligible for employment. The system compares information from the employee’s I-9 form to existing Homeland Security and Social Security databases.

E-verify gives you the peace of mind that the person you hired is eligible to work in the United States. If a government agency were to ask you for records regarding a certain employee, including an E-Verify report is strong evidence that you performed comprehensive due diligence.

Enroll your company here. Once each of you complete the I-9 form, enter the information into the E-Verify system. Providing all information matches, the you will receive an “Employment Authorized” result. Print the results page and attach it to the I-9 and keep it in the employee’s file.

If the system finds a mismatch, print the information for the employee who has eight days to resolve the problem before you have to terminate the worker. You cannot terminate the employee until E-Verify returns a final nonconfirmation result. The system will update you if the mismatch is resolved. According to statistics, more than 98 percent of employees are automatically verified.

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