Classes of Aliens Who Can Be Employed

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 What is an Alien?

Aliens are people who live in the United States but are not U.S. citizens. They have not been naturalized according to U.S. immigration and naturalization law. Or they are not citizens by birth.

Aliens can be of any age and gender and can be present in the United States for many reasons. They might be tourists or the spouses of citizens who have not yet become citizens themselves. They may or may not be authorized to work.

What Classes of Aliens Can Be Employed?

An employer needs to know which aliens can be employed legally. An employer who employs an illegal alien who is not authorized to work can face both criminal and civil consequences. Most people think that only an alien with a Green Card or a temporary work visa can be employed, but other aliens are authorized to work and can be employed.

Generally, aliens who can be employed without restrictions on location or type of work can include the following:

  • Any person who is a lawful permanent resident of the United States;
  • Aliens who come to the United States as part of a temporary resident agreement under the Immigration Reform and Control Act of 1986;
  • Aliens admitted to the United States as refugees, but only for as long as they have that status;
  • Aliens granted asylum in the United States;
  • The parent or dependent of another alien who has been granted permanent residence in the United States;
  • An alien admitted to the United States as a citizen of the Federated States of Micronesia or the Marshall Islands,
  • An alien who is validly married to a United States citizen;
  • An alien with a V immigrant visa, which cannot exceed two years.

There are two categories of visas that provide work authorization, immigrant visas, and nonimmigrant visas. Immigrant visas are provided to aliens approved for permanent residence in the U.S., while nonimmigrant visas are given to aliens approved for only temporary stays in the country. These temporary stays can last for as long as seven years.

There are 20 classifications of nonimmigrant visas, and only 6 of them allow the visa holder to work while in the country. These nonimmigrant visas that allow the holder to work while in the U.S. are offered in the following categories:

  • Students who are pursuing an education can obtain work authorization for practical training after they complete their course of study;
  • Registered nurses;
  • Temporary agricultural workers;
  • Workers in the service sector;
  • Trainees;
  • Intra-company transfers;
  • Artists and entertainers;
  • Athletes and other aliens of “distinguished merit” or “extraordinary ability,” especially in such fields as the sciences, high technology, education, the arts, business, or sports.

Is It Illegal to Hire an Alien Who Does Not Have a Work Visa?

It is illegal for a person or company to hire an alien, recruit an alien, or refer an alien for employment in exchange for a fee if the person or company knows, directly or constructively, that the alien is not authorized to work in the United States.

It is also illegal for a person or a company to continue to employ an alien knowing that the alien is not authorized to work in the U.S. Employers may prefer a U.S. citizen over an alien in recruitment and hiring, even if the alien has work authorization, but only in cases in which the U.S. citizen is equally or better qualified.

How Can I Tell If a Person Is Authorized to Work in the U.S.?

Hiring any person for employment in the United States is illegal without complying with federal immigration employment eligibility verification requirements. The verification of a person’s eligibility for employment involves examining their identity documents and completing a federal Form I-9 for every employee a person or company hires. Employers must keep all of the I-9s they complete, and the I-9s must be made available for inspection with 3 days advance notice.

An employer should keep in mind that the law considers it discrimination to ask an applicant for employment if they are a citizen of the U.S. It is illegal to discriminate in employment based on national origin or citizenship. However, an employer must ask every prospective employee whether they are authorized to work in the United States.

If the applicant states that they are authorized to work, then the employer can establish the basis of this authorization, whether it is naturalization, permanent resident status, or a visa that allows the holder to work.

An employer can turn to the E-Verify system to help verify a person’s employment eligibility. This is an employment-verification system run by the federal Immigration and Customs Enforcement (ICE) agency. The E-Verify system determines whether or not a non-citizen is eligible to work in the U.S. by searching databases at the Social Security Administration (SSA) and the Homeland Security Department.

Employment includes any service or labor performed for any compensation within the U.S. The only exception is occasional domestic service by a person in a private home. Day laborers are not exempted, nor are other casual workers engaged in any activity for which they are compensated. Day laborers and casual workers are employees for the purposes of immigration law.

An employer includes an agent or anyone who acts directly or indirectly in the interest of an employer. To verify authorization to work, an “employer” is an independent contractor or a contractor other than the person who benefits from the alien labor.

Temporary or short-term employment contracts cannot be used to avoid the need to verify an employee’s authorization to work. Even if an employee is hired for less than the 3 days allowed for completing the I-9 Form, the Form must be completed immediately at the time of hire.

What Is Constructive Knowledge of an Employee’s Immigrant Status?

An employer can have constructive knowledge that an employee is not authorized to work if a reasonable person would infer it from the facts. Courts have found constructive knowledge constituting a violation of federal law in the following situations:

  • The I-9 employment eligibility form, including supporting documentation, was not completed properly;
  • An employer has learned from other people, media reports, or any source of information available to the employer that the alien is not authorized to work,
  • An employer recklessly disregards the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer’s workforce.

An employer cannot be charged with constructive knowledge solely because an applicant or new hire had an accent or foreign appearance, but actual specific knowledge of a person’s ineligibility is not required. For example, a newspaper article that reported that ballrooms depend on illegal aliens filling the role of dance hostesses was held to be a reasonable basis for suspecting that unlawful conduct had occurred.

It is illegal for non-profit and religious organizations to knowingly assist an employer in violating employment sanctions, regardless of claims that their religious or other convictions require them to assist aliens. The First Amendment to the U.S. Constitution has been found not to justify harboring or aiding illegal aliens.

Employers should also remember that once they hire an immigrant worker, by law, they must compensate immigrant workers at roughly the same wage or salary that they pay to non-aliens in the same positions and the same geographic region. Businesses that fail to meet minimum compensation standards may be punished by the U.S. Department of Labor (DOL). A state’s Bureau of Employment Services can provide small business owners with “prevailing wage” information. Or, they can hire someone to complete a prevailing wage survey. For example, an employment agency might be able to provide this service.

What Is the Punishment for Violating Federal Immigration Law in Hiring?

Federal law on hiring unauthorized aliens to work is very strict. Federal law states that no one should employ aliens who are not authorized to work in the U.S. If a person does this in violation of the law, they can be fined under the law and possibly imprisoned. There may be other consequences as well.

The penalties for knowingly hiring, recruiting, or referring illegal immigrants for payment are as follows:

  • For a first offense, a fine of $200 to $2000 per illegal employee;
  • For a second offense, a fine of $2000 to $5000 per illegal employee;
  • For a third offense, $3000 to $10000 per employee.

Employers who demonstrate a pattern of knowingly employing illegal immigrants can be subject to extra fines and up to six months in jail.

Unknowingly hiring an illegal worker can also result in penalties. If a worker provides a fake Social Security number and fraudulently fills out the I-9 Form, the employer is still liable and can be fined amounts ranging from $100 to $1,000.

Hiring aliens who are not authorized to work can result in criminal charges under the federal RICO Act and the law prohibiting illegal aliens from harboring. This ensures that serious offenders are put behind bars, and large fines are imposed.

A person or business who hires 10 or more workers per year who are aliens not authorized to work can be charged with other crimes and suffer criminal penalties. For example, hefty fines can be imposed on an employer for conviction of RICO Act violations.

It is a federal felony offense to establish a commercial enterprise to evade federal immigration law. A conviction can result in imprisonment for up to 5 years and imposition of a fine.

Designated ICE officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.

State and local law enforcement officials have the general power to investigate and arrest people who violate federal immigration statutes without the prior knowledge or approval of the U.S. Citizenship and Immigration Services (USCIS) as long as they are authorized to do so by state law.

There is no existing federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage state and local law enforcement agencies to participate in the enforcement of federal immigration laws.

Do I Need an Attorney for my Alien Class and Employment Issue?

As you can see, there is quite a bit of complexity to the issue of hiring immigrants in the U.S.; yet, employing an improper alien can be costly. It can sometimes be difficult to establish whether an alien can be employed.

Therefore, it is strongly recommended that you consult an experienced employment attorney if you are involved in any aspect of employing aliens. Only an attorney can explain the relevant issues and help defend your rights.

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