Legal Requirements for Overseas Hiring (I-9 Form)

The Immigration and Nationality Act (INA) addresses immigration and citizenship in the U.S.  It also includes provisions for employment eligibility, employment verification, and non-discrimination.  Here are some important forms and provisions from INA.

Employee Eligibility Verification (I-9 Form)
Verification of employee’s eligibility to work in the U.S. is required by law.  Employers must fill out the I-9 form within 3 days of a new foreign hire.  Acceptable official employee documents are listed on the I-9 form and all must be examined and verified by the employer.  Employers are prohibited from asking for documentation other than those listed on the I-9 form and may be subject to discrimination lawsuits in doing so.

The employer does not file the I-9 form with the federal government, but is required to store the I-9 form in the employee file for 3 years after the date of hire or 1 year after the employee’s termination date, whichever is later.  The U.S. Immigration and Customs Enforcement (ICE) agency performs workplace audits to verify that I-9 forms are kept and that the forms match government records.

Hiring and Employment
Visit the Department of Labor (DOL) website to learn more about labor laws and foreign workers.  Here you will find information about the foreign labor certification programs to bring foreign workers to the U.S. for temporary or permanent hire.  The program is designed to protect the U.S. workforce from foreign competition that might negatively affect job opportunities, wages, and working conditions.

Wages Under Foreign Labor Certification
The Immigration and Nationality Act (INA) permits U.S. employers to hire immigrant labor for temporary or permanent positions to perform specific jobs.  The Department of Labor’s Employment and Training Administration’s mission is to approve special visas only for foreign workers where there are no available, willing, and qualified U.S. workers to fill that position, for which the wages meet or exceed the prevailing wage for that occupation.

Fair Employment Practices (Non-Discrimination)
The INA protects U.S. citizens and authorized workers from employment discrimination with regard to citizenship or immigration status.  The INA protects all authorized workers from national origin discrimination, unfair document practices in the I-9 process, and from retaliation.  The U.S. Department of Justice (DOJ) enforces the INA.

No-Match Letters
The Social Security Administration (SSA) verifies employees’ W-2 forms to ensure Social Security numbers match SSA records.  ICE verifies the accuracy of I-9 forms.  If one or both agencies cannot verify the employee’s information, the employer will be notified with a “no-match letter.”

Upon receiving a no-match letter, follow up with the reporting agency immediately following the ICE’s safe harbor procedures.  Be careful not to wrongfully punish the employee.  Firing an employee due to receipt of a no-match letter opens you up to a discrimination lawsuit.  It is equally important to follow the ICE’s safe harbor procedures immediately, so as not to be accused of knowingly hiring an illegal immigrant, which is also against federal law.