Hiring Undocumented Immigrants: What You Need to Know

There is much confusion about whether businesses and other employers can hire immigrants to work for them. Ultimately, it comes down to whether the immigrant has legal permission to work in the United States.

Immigrants who do not have work authorization are not allowed to work legally in the United States as an employee for an employer. Many immigrants who do not have legal status, or rather, undocumented immigrants, do not have permission to work. However, some undocumented immigrants have work authorization, for example, if they have Deferred Action, Temporary Protected Status, or a pending immigration case. For example, someone who is applying for a green card through a U.S. citizen spouse may be able to obtain employment authorization while their green card application is pending after a certain period of time, even if they do not have a green card currently. People who are applying for asylum may also get permission to work after a specific time period while their asylum case is pending. In this article, we will answer any questions you may have about the possibility of hiring immigrants, whether you are a small business owner or a potential employee.

Hiring Undocumented Immigrants

What documents are required when hiring new employees?

Form I-9 to verify employment eligibility In order for an employer to hire an employee in the United States, Form I-9, Employment Eligibility Verification, must be filled out to verify the identity and employment authorization of the individual seeking employment. All United States employers are required to complete Form I-9 for each person they employ. Documents to verify the employee’s identity In addition to attesting to their work authorization on the form, the employee must provide the employer with the document(s) that provide proof of their identity and eligibility to work in the United States. Documents to verify both things There are various types of documents that the government allows an employer to accept to establish an employee’s identity and work eligibility. The government’s list of acceptable documents is on the last page of Form I-9. This document also comes in Spanish, and instructions are available in English and Spanish. Some types of documents, those that are classified under List A, such as a United States passport or an Employment Authorization Document with a photograph, establish both identity and employment authorization. That means that a person who has one of the documents listed under List A only needs to provide one document. For individuals who do not have a List A document, they will need to submit at least two types of documents: one from List B, documents that establish identity, and one from List C, documents that establish employment authorization. Documents that establish identity include for example a state-issued driver’s license or a United States military card. Documents that establish employment authorization can be for example an original or certified copy of a birth certificate issued by a state or county in the United States or a social security account number card (unless the social security card includes a restriction such as not valid for employment). The law requires that employers when verifying a document to determine work authorization must determine that the document “reasonably appears” to be “genuine.”

Is it legal for employers to hire undocumented immigrants who can't provide a working visa or a social security number (SSN) as employees?

No. Unless an individual can prove that they are a United States citizen or has work authorization, an employer will not be able to hire a person who is without a visa or social security number as an employee. However, there is no law that says undocumented immigrants can’t own their own business. Many undocumented immigrants who do not have work authorization have their own businesses. In fact, there are hundreds of thousands of American small businesses that are owned by undocumented immigrants. Many of these immigrant business owners provide services as independent contractors.

“Undocumented inmigrantes CAN have their own business”

Do employers need to complete employment verification checks for independent contractors?

No. Employees do not need to verify the employment eligibility using Form I-9 if the workers are temporary independent contractors. The United States Citizenship and Immigration Services, an agency of the United States government, explains: “An independent contractor is not considered an employee for Form I-9 purposes and does not need to complete Form I-9. Independent contractors include individuals or entities who carry on independent business, contract to do a project according to their own means and methods, and are subject to control only to the results of the work and not what and how it will be done. Many factors are considered when determining whether or not an individual or entity is an independent contractor.” However, it is important to note that businesses and individuals may not hire independent contractors if they are aware that the independent contractor is not authorized to work in the United States. In addition, employers who hire sporadic, occasional, and/or intermittent casual domestic services such as a handyman, babysitter, or cleaning person that helps around the home do not need to go through the Form I-9 employment verification process. If a domestic service provider provides regular help however, they may need to comply with the Form I-9 process.

What are the consequences of hiring immigrants without work authorization for business owners and for workers?

Consequences for employers If an employer hires an immigrant who does not have work authorization, they can face civil or criminal penalties. The U.S. Code § 1324a makes it a crime to hire an immigrant who is not authorized to work. In some cases, an employer may be able to establish that they should not be liable for hiring an unauthorized worker if the employer can establish by clear and convincing evidence that they did not know and could not have reasonably known that the worker did not have permission to work at the time. According to the United States government, employers can face civil fines for activities including:

• Knowingly hired, or to have knowingly recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employ an unauthorized alien in the United States
• Failing to comply with Form I-9 employment verification requirements
• Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or the Immigration and Nationality Act
• Committing document abuse
• Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee
• Failing to notify the United States Department of Homeland Security of a Final Nonconfirmation (FNC) of an employee’s employment eligibility
• Requiring an individual to post a bond or security or to pay an amount or otherwise to provide financial guarantee or indemnity against any potential liability arising under the employment verification requirements

Civil fines can range from hundreds to thousands of dollars per violation. To sum up, business owners must protect themselves by ensuring that they comply with the Form I-9 employment verification process for all employees. In addition, business owners who are immigrants should make efforts to be careful of avoiding scams targeted at the immigrant community. Consequences for undocumented immigrants Immigrants can also face consequences if they try to work as employees without permission. It is important for immigrants to learn about their rights as workers. Immigrants should also seek to avoid using or making fake documents, as doing so can have criminal penalties. The U.S. Code § 1324c makes it unlawful to forge, counterfeit, alter, or falsely make any document or use, attempt to use, possess, obtain, accept, receive, or provide any falsely made document for a benefit. As always, it is best for business owners and immigrant workers to consult with an immigration attorney on these issues for counsel.

Is there any way to comply with the law through the process of hiring an immigrant who does not have work authorization?

Employers who want to hire an immigrant who does not have permission to work may seek to sponsor the potential worker for a work-related visa. There are several kinds of work visas such as H-1B, L-1, and EB visas. An H-1B visa is the most common way for employers to sponsor professional workers in the U.S. While it is easier for large companies with large amounts of cash flow, small business owners may also seek to petition for work visas for employees. Work visas are still available under the current Administration. However, it has become increasingly more difficult over time for employers to sponsor immigrant workers for employment-related visas.

"Business owners can legalize the process of hiring an undocumented immigrant by sponsoring a work visa"

For any immigration application, it is important to work with a skilled immigration attorney because any mistakes or misrepresentations could have drastic immigration consequences. Look for resources to confirm whether an immigration attorney is licensed and reputable.

As a business owner, how else can you strengthen your business and support your immigrant employees?

A strong, stable, and resilient workforce is one of the most important things for any business to sustainably grow. To build a strong workforce, it is important to invest in empowering your employees so that they can best protect themselves, build stability, and thrive. Help your immigrant employees understand the legal services they can access regardless of their immigration status, as well as the educational resources available that can help them improve their finances and thus achieve economic wellbeing or even build wealth. At Camino Financial we strongly believe in our motto, “No Business Left Behind”. That’s why we focus our efforts to help small business owners. We have developed financial products with you in mind. And we don’t stop there: at Camino, we won’t simply provide you with the funds you need to grow your business. We are proud of establishing long-term relationships with our members, we are their partners on their path to success. We’ll be happy to assist you anytime and provide you with the tools and bilingual educational resources you need to improve your financial performance, access better opportunities, and successfully grow in the US. Apply now! ADD_THIS_TEXT