Alien Certification

Alien Certification | Attorneys, Lawyers & Legal Resources

It is against the law in the US for an employer to hire an alien who is not certified to work in this country. In particular, the following three acts are illegal:

Knowingly hiring, recruiting, or recommending an alien who is unauthorized to work in the US.

Keeping an alien on staff after finding out they are unauthorized to work.

Tax returns/receipts.

Failing to adhere to recordkeeping requirements according to US legislation.

Although keeping sub-par records of aliens is illegal, employers who do keep suitable records and are later accused with violating the alien employment agreement can use that in their defense.

What authorizes an alien to work?

Aliens who are eligible to work are legal permanent residents of the US who have been granted permission to work here by Citizenship and Immigration Services (CIS). Aliens must be able to show documents proving their entitlement to work in the US to employers.

What authorizes an alien to work?

What constitutes knowledge of an unauthorized alien?

An employer does not have to have knowledge of an alien who is unqualified to work in the US to be held accountable; they simply need to have constructive knowledge, or comprehension of particular facts that would lead a practical employer to determine that the alien is unauthorized to work in the US or delve deeper to decipher the alien's employment standing.

Federal laws provide instances demonstrating how an employer may acquire constructive knowledge of an alien's lack of permission to work. For example, if an employer keeps an alien on the payroll after their short-term work authorization has expired, or an employer discovers that an alien has fraudulent paperwork, this is considered having constructive knowledge. On the contrary, an employer cannot find lack of authorization based upon workplace gossip or an employee's drawl or appearance.

It is common for an alien to use conflicting or false legal documents to support their cause. For example, an alien may claim that their work authorization ends on a specific date, but then they might possess a green card with no ending date at all. Beyond that, an alien could present a counterfeit document such as a US birth certificate when, in actuality, they've only been on US soil for a few months. For this reason, employers need to keep a watchful eye for aliens attempting a bit of trickery to extend their stay on the workforce.

Are there any exceptions to these rules?

Aliens who happened to be employed when this legislation was implemented in 1986 are excused from having to meet these requirements if they remain employed by the same company. Employees that are grandfathered in are no longer exempt if they leave their job, get fired, are deported, or don't have a consistent work schedule.

Under these immigration laws, independent contractors are not subjected to the same regulations as other employees. To figure out whether someone is an independent contractor or an employee, one must determine if the employer controls how the work is performed. For instance, does the employer provide tools for the job, decide what hours the person will work, and oversee the manner in which the work is completed? Other factors taken into consideration are the form of payment that the worker accepts, whether the person is in business for themselves, and how both parties view their working relationship.