Meeting the Standard of the USCIS in the Hiring Process

The Immigration and National Act (INA) forbids hiring of illegal aliens in the workplace, but how and when does one inquire as to the legal status of the worker?

While it is illegal to hire an unauthorized worker, a potential employer cannot ask for documents, or even ask the potential employee about their status in the United States until after the hiring process is completed. The INA protects employees, at all stages of the hiring process practice, from discrimination.

To prevent discrimination, the employer should treat all people equally when:

• Announcing a job.

• Taking applications.

• Performing interviews. 

• Making job offers. 

• Verifying the individual’s authorization to work. 

• Hiring the individual.

• Terminating the individual’s employment.

Once an offer is made and accepted, the employer has three business days to complete Form I-9 for the new employee. It is through this process that the employer will verify that the worker is properly documented by requiring proof that the worker is authorized to work in the U.S. This proof is photocopied and attached to Form I-9, then stored on the business premises – either electronically stored or stored in a file. The key is to maintain the form and documentation in the same format for each employee – consistency is the key to successful I-9 record keeping

The required documentation for Form I-9 offers the employee a range of acceptable documents which would include either (see Form I-9) one from “List A” or one from “List B” and one from “List C” as Documents are considered acceptable as long as the documents presented by the employee reasonably appear to be genuine and to relate to the employee. Employers must not:

In addition, the employer can now protect him/herself through a free service provided by the USCIS called E-Verify. E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States and can be accessed at www.uscis.gov. By submitting the required information about the worker and their documentation, the employer will receive a determination as to the status of that worker, thereby adding an additional layer of protection to the hiring process.

Employers who knowingly hire illegal aliens can be subject to both civil and criminal penalties. Protect yourself and the interests of your business by maintaining I-9 files and exercising care in the hiring process.