Immigration and Employment Law: Answers to Common Questions
This article contains answers to common questions immigrants may have about employment law. This article was written by American Gateways.
Your ability to work lawfully in the U.S. depends on your immigration status. Naturalized citizens, lawful permanent residents, and refugees can work freely without restriction. All other types of immigrants, however, must apply for an Employment Authorization Document (EAD), which is often called a work permit, before they are allowed to work.
All immigrants with authorization to work in the U.S. may apply for a social security number and card from their local Social Security Administration office. Undocumented immigrants without employment authorization are not eligible for social security numbers, but may still apply for a Taxpayer ID Number from the Internal Revenue Service, which they can use to file and track their federal income taxes.
Yes, labor laws in the U.S.—including the Fair Labor Standards Act (FLSA), Occupational Health and Safety Act (OSHA), and Family Medical Leave Act (FMLA)—apply to all employees, regardless of their immigration status. If you believe that your employer is violating labor laws, you have the right to file a complaint with the Department of Labor or other relevant agency. You may also hire your own attorney to sue your employer.
No. Employers are legally barred from asking questions related to certain topics during an interview. Restricted topics include your citizenship status, disabilities, sexual orientation, religion, family plans, national origin, etc. If an employer asks you about your immigration status or history, that question is in violation of the law, and you are not required to answer it. Instead, say that you are not required to answer the question, and move on to a different topic.
However, employers are required to verify the identity and employment eligibility of all employees hired after November 6, 1986. They do this by completing the Employment Eligibility Verification (I-9) Form. They must review documents showing the employee's identity and employment authorization. The law prohibits employers from rejecting valid documents. Employers can’t ask for more documents—beyond what is already legally required for employment eligibility verification—just because of an employee's citizenship status or national origin. For example, an employer cannot require only individuals the employer perceives as "foreign" to verify their employment eligibility, or produce specific documents (like the employee's "green card" or Employment Authorization Documents). Employees choose which of the permitted documents they show for employment eligibility verification. As long as the document looks reasonably genuine, and relates to the employee, it should be accepted.
Unless otherwise provided in an employment contract, employment in Texas is “at will.” This means that an employer can fire you for any reason and at any time. Employers “at will” are not permitted to terminate an employee for illegal reasons, such as your nationality. However, they are allowed to terminate your employment if you cannot produce evidence of your authorization to work legally in the U.S.
The Immigration Reform and Control Act of 1986 (IRCA) is legislation Congress passed, intending to curb unlawful immigration to the U.S. Among other things, the law provides for sanctions against employers who demonstrate a pattern or practice of hiring undocumented workers. IRCA also led to the creation of Form I-9, and requires employers and the job applicant to complete the form at the time of hiring.
An I-9 Form is a form that all employers must complete at the time of hiring to confirm the identity and employment eligibility of the applicant. The job applicant must provide basic information about themselves, including a social security number, and attest to their employment eligibility. It is extremely important that non-U.S. citizens do not claim U.S. citizenship on this form, because it can have serious consequences for their immigration status in the future.
E-Verify is a nationwide database that employers can use to determine the employment eligibility of job applicants and prevent the unlawful employment of undocumented workers. At this point in time, federal law does not require all employers to use E-Verify. But many private employers, and nearly all public employers, do.
While there are several ways to gain employment authorization in the U.S., there are relatively few types of work visa. Work visas are documents authorizing a person to come to the U.S. for the specific purpose of employment. Most employment visas, including the H-1B Visa, are reserved for applicants with advanced technical skills, such as scientists and engineers. These visas typically require that the applicant have an employer “sponsor” in the U.S. who is committed to hiring them, and who has made assertions about the unavailability of similar applicants within the U.S. labor market. Other types of employment visas are available to individuals with special talents, such professional athletes and musicians, and for business owners abroad who are prepared to make a substantial investment in the U.S. economy (such as by opening a new office or factory).
While there are some employment visas available to low-skilled workers, these are primarily for seasonal work in the agricultural sector. They make up a relatively small percentage of the total number of employment visas the government issues each year, and are very difficult to obtain.
If you violate the terms of your visa by remaining in the U.S. for longer than the time allowed, you may be subject to removal (deportation), and may have a difficult time getting permission to return to the country in the future. There are some exceptions to this rule. All visa holders should understand and abide by the terms of their status in order to avoid serious immigration consequences.
An immigrant’s eligibility for all public benefits—including unemployment or worker's compensation—depends heavily on their specific immigration status. Generally speaking, undocumented workers do not have access to public benefits programs, including state unemployment benefits or workers compensation benefits.