Hiring a Non-Citizen

In the United States, hiring a non-citizen is common for household employers, largely for financial reasons, and many hire people not legally authorized to work in this country. Household employers should only hire people who are legally authorized to work in the United States, including U.S. citizens, legal permanent residents, and other aliens authorized to work, such as refugees, asylees, and persons in Temporary Protected Status. There are many reasons why you should not hire illegal workers, mostly because you can face harsh penalties if you do so incorrectly and there is the risk that the worker may have to be deported back to their country of origin. It is also much harder to perform background checks and gain verifiable references when contacting international sources.

An immigrant is a foreign-born person who has been sponsored by a qualifying family member or employer, and who has approval to reside permanently in the U.S. as a lawful permanent resident. This person holds a Resident Alien Card, known often as a green card. A non-immigrant is an alien who seeks entry into the United States or who has already been admitted for a specific purpose for a temporary period of time. These temporary periods can range from a few days to many years. Non-immigrants come to the U.S. for many different purposes, including temporary work, longer-term work, study, travel, training, or participation in athletic, cultural, or performance events.

For a non-immigrant alien to travel to the United States and to apply for admission at a U.S. port of entry, he or she must usually have an entry visa, issued to him or her abroad by a U.S. consulate for the category of activity in which the non-immigrant wishes to engage. While an entry visa is necessary to travel to and apply for admission into the United States within the time period authorized by the visa, the entry visa alone does not provide any immigration status or employment authorization.

All employers in the United States must complete a Form I-9 for every employee hired. This ensures that only people legally able to work in the United States are hired. Therefore, employers use Form I-9 to verify the identity and employment eligibility of employees.

Under the Immigration Reform and Control Act of 1986 (IRCA), United States employers who knowingly employ an unauthorized alien in the United States can be ordered to cease and desist, and be fined a civil penalty for failing to comply with Form I-9. Employers who commit a first offense for a single employee or two may receive only an educational visit and a warning. The U.S. Citizenship and Immigration Services’ goal is compliance, not penalization of unknowing employers. But those employers who engage in a pattern and practice of employing unauthorized aliens will face full penalties and be fined up to $3,000 per unauthorized employee. Subsequent offenses can receive a fine of up to $16,000 for each unauthorized alien.

Employers must verify the identity and employment eligibility of anyone to be hired through completion of Form I-9 (Employment Eligibility Verification). Each completed I-9 must be kept on file for at least three years, or one year after employment ends, whichever is longer. Employers who fail to properly complete, retain, and present Form I-9 for inspection (as required by federal law) may incur civil penalties of up to $1,100 per employee. With the increased attention on legal hiring practices and legal payroll and tax payments, it is critical that household employers follow the laws and requirements established in their states and municipalities, even if the employee is authorized to work in the United States.

Just as it is difficult to define household employment and those positions within the household employment industry, employers new to hiring foreign nationals, immigrants, non-immigrant aliens, and so on, may quickly find themselves confused and uncertain. Just reading the handful of immigrant employee types is enough to intimidate most of us. There are so many different definitions, each with their own specific hiring requirements and legal issues; it is a courageous household employer who takes on the extra worry and paperwork when he or she hires a non-citizen. Yet, since nearly one-quarter of the household industry’s employees are non-citizens, immigration is a very real and very important consideration for hiring household help.

Download GTM’s Hiring a Non-Citizen Checklist to make sure you take the necessary steps to hire a non-citizen legally and professionally.