In my Consulta Migratoria® column this week I answer a question from a reader who wants to know if an employer acted correctly in asking for additional documents to verify if he could work legally.
Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.
This is the column:
I am a permanent resident of the United States. Last week I read your column which explained that an employer cannot discriminate during the employee hiring process. Recently, I accepted a job offer at a restaurant and the employer told me that he has to see my resident card in order for me to start working. I have shown him my California driver's license and my social security card which does not have any restrictions but the employer says that is not enough. Is the employer acting correctly? -Fernando A.
Fernando, it is likely that your employer is acting incorrectly. A California driver's license and an unrestricted social security card, which have been legally obtained, are usually sufficient to prove your eligibility to work in the United States.
By law, it is the employer's responsibility to verify that every employee in their company is authorized to work legally in the U.S. Part of the hiring process is to fill out the Form I-9, Employment Eligibility Verificationwhich requires identity verification and employment authorization for all new employees, whether or not they are U.S. citizens.
There is an updated Spanish version of Form I-9 on the U.S. Citizenship and Immigration Services website, but it can only be used in Puerto Rico. Within the U.S. and its territories, the Spanish version can be used for reference only, as the Form I-9 must be completed in English.
Every employer must examine and accept original documents from the employee that reasonably appear to be genuine. This does not authorize the employer to request further documents that are not required by law.
It is important to know what guidelines hiring managers must follow to avoid being a victim of discrimination and to understand what their rights are.
An employer must treat everyone the same when advertising a job, during the hiring process, or terminating an employee. It must provide the same job information over the phone to every caller and give the same job application to every applicant.
If you provide legitimate documents that prove your identity and work authorization, such as those listed on the reverse side of Form I-9, an employer cannot require further documentation.
For example, if a person is authorized to work in the U.S., he or she cannot be required to have U.S. citizenship or permanent residency, unless required by federal law or contract.
If an employer needs to re-verify an individual's employment authorization, it must accept any valid documents, even if they are not the same ones the employee presented when hired.
All termination decisions must be based on the employee's job performance or behavior and not on the employee's appearance, accent, name, or citizenship.
To protect immigrants authorized to work here from employment discrimination, the U.S. government established the Office of Special Counsel for Immigration-Related Unfair Employment Practices. This office has a hotline to advise employers on how to avoid discriminatory practices (1-800-255-8155), and another for employees to report such abuses (1-800-255-7688).
Undocumented immigrants also have certain labor rights. If you work, you have the right to be paid, regardless of your legal status. If you work and are not paid, file a complaint with the U.S. Department of Labor at 1-866-487-9243.
For more information and immigration tips, read my blog inmigracionhoy.com.
Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.
Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).