If you’re recruiting for your business, you’ll want to make sure new hires are authorized to work in the United States. (See the article “Legal Pitfalls of Hiring Undocumented Workers.”) How will you know, though, if a prospective employee has “papers”? Can you ask? – must you ask? If someone you want to hire doesn’t have the necessary papers, what can you do?
Why and How You Should Ask About Work Authorization
Whether or not you are actively considering hiring foreign workers when you recruit for a position in your company, the U.S. government regards you as a prospective employer of foreign workers and gives you a role to play in enforcing immigration laws. Since 1986, U.S. employers have been required to confirm the work authorization of each new hire at the time of hire and to keep records to show compliance with this rule. The form used for this purpose, Form I-9, can be found at the USCIS website (www.uscis.gov/forms). Accompanying the form at the website is a 69-page Employer’s Handbook providing detailed instructions for completing the form as well as a thorough explanation of your associated legal obligations.
As explained by the Employer’s Handbook, jobs attract illegal immigration to the U.S., and the law aims to “remove this magnet” by compelling employers to make sure new hires fit into one of the four classes of legal workers:
- U.S. citizens
- noncitizen nationals
- lawful permanent residents, and
- aliens authorized to work.
You don’t actually have to know how each of these categories of legal workers is defined, because the Form I-9 instructions and the Handbook spell out exactly what documents will count to establish employment authorization. They also make it clear that the choice of which documents to present is not the employer’s but the employee’s.
What’s more, an employer’s preference for one class of legal worker over another could actually be construed as illegal discrimination. For, at the same time that the law obliges you to confirm that every new hire is authorized to work, the law prohibits you from discriminating on the basis of national origin or citizenship status. In fact, if you look at an I-9 form, the first thing your eye lights on is an “Anti-Discrimination Notice,” placed at the top of the left-hand column of the “Instructions” page and boxed for emphasis. This notice warns employers against specifying which types of work authorizing documents they will accept, even if the reason for the preference is that one type has a future expiration date and another does not.
What if your recruitment turns up a worker uniquely perfect for the job who can’t produce any of the qualifying documents?
What You Can Do If a Prospective Hire Doesn’t Have Work Authorization
If a worker you want to hire doesn’t have the necessary authorization, you may be able to help him or her get it. Then again, you may not. No standard, general-purpose work authorization exists under immigration law. What’s more, the rules and procedures for obtaining work authorization for foreign workers can seem formidably complex and difficult, resting as they do on a central underlying tension between the imperative to make needed workers available to U.S. employers and the imperative to protect the wages and working conditions of the existing U.S. workforce.
Depending upon the requirements of the job you are trying to fill, the qualifications of the worker you are trying to hire, and the amount of time, money and effort you are willing to expend, you may be able to sponsor a prospective employee for lawful permanent residence in the U.S. – a “green card.” (See “Employment-Based Green Card Options.”) As stated above, lawful permanent residents constitute one of the four classifications of legal workers in the United States. Theoretically, at least, a green card can be founded on any full-time permanent job, though the labor certification requirements imposed on most jobs and the long waiting times under the yearly quotas make the practical reality a different matter. (For a complete description of the employment-based green card process, see “Procedures to Sponsor a Worker for a Green Card.”)
Alternatively, what immigration law offers you is a variety of “nonimmigrant,” or temporary, visa categories authorizing a variety of specific kinds of employment for certain set periods of time. Sometimes, nonimmigrant status can actually serve more as a stepping stone than as an alternative to the green card, allowing an employer to employ a green card candidate during the typically long time it takes to get a green card. (See the article “Nonimmigrant Work Visa as Stepping Stone to a Green Card” for more detailed discussion.)
The work-authorizing nonimmigrant visa categories cover what appears to be a broad array of kinds of work, from seasonal laborers (H-2A, H-2B) to illustrious artists, scientists, educators and businessmen (O-1); from specialized knowledge workers (E-1, E-2, L-1B), professionals (H-1B, E-3, TN), and multinational executives (L-1A) to religious workers (R-1), athletes, and entertainers (P-1, P-2, P-3, Q-1). (See the article, “Types of Nonimmigrant (Temporary) Visas: Who Qualifies?” for a complete listing of nonimmigrant visa categories.)
But despite the apparent variety, many jobs will fall through the cracks between the work-authorizing nonimmigrant visa categories, as each category is narrowly defined, imposing specific requirements on both employer and employee.
In the end, then, whether an employer can help a prospective employee get work authorization in the U.S. can only be answered in a particular context – and, perhaps, with the help of an experienced immigration attorney.