Employing Immigrant Workers

The restaurant and food service industries undoubtedly hire more immigrant workers than any other industry within the U.S. According to the Bureau of Labor Statistics, nearly 2 million workers within the restaurant and food service industries are foreign-born workers. This constitutes over 15% of one of the nation’s largest private-sector industries; a sector that provides over 13 million jobs for workers.

Immigrants are usually drawn to the United States as a result of employment opportunity. However, although immigrants provide a viable employment avenue for employers, there is no shortage of legal hurdles. For example, if an employer wants to hire an individual who already holds a green card, this individual can be hired as long as an employer readily complies with the employment eligibility verification requirements. However, if the individual is not a permanent resident, the process becomes more complicated. In this instance, an employer is required to petition on the alien’s behalf to obtain an immigration classification permit, for either temporary or permanent work.

All employers must verify that new employees are authorized to accept employment within the U.S. Regardless of citizenship status, employees must complete and submit the U.S. Citizenship and Immigration Services (USCIS) Form I-9 to verify their employment eligibility within 3 days of hire. When an employer receives the pertinent documentation, they must accept it if the information appears to be genuine. Employers are required to retain the documentation for each employee for 3 years or 1 year after the employee ceases employment, whichever comes first.

For high-volume employers with the restaurant and food services industry, E-Verify provides a viable, electronic solution for employment eligibility verification compliance. E-Verify is an automated system offered by the USCIS that allows enrolled employers to validate a newly hired worker’s SSN against the Social Security Administration (SSA) database, and to check an Alien Number against the Department of Homeland Security (DHS) database. E-Verify is a free and voluntary service that helps employers maintain a legal workforce.

Avoiding Verification Errors

To comply with immigration laws and avoid discrimination liabilities, employers must thoroughly understand the employment eligibility verification process, and Form I-9 completion procedures. To effectively comply with requirements, employers should take the following items into consideration:

• Do not contract an alien for employment if you know the alien is not authorized to work in the United States.
• Employees are not obligated to supply a SSN for the I-9 unless you are utilizing the E-Verify Program.
• All labor employment laws pertain to immigrants, such as minimum wage and overtime, even if an employee is considered "undocumented."
• Re-verifying an employee's employment verification on the I-9 must occur before the employee's employment authorization expires.
• Do not re-verify an employee with expired documentation, such as an expired passport, Alien Registration Card, Permanent Resident Card, or other acceptable forms of documentation.
• You must complete a new I-9 form if the form you used previously is no longer valid.
• I-9 forms must for filed for 3 years or 1 year after the employee ceases employment, whichever is later.
• Do not request specific documentation from an employee that includes his or her SSN; doing so may constitute discrimination on the basis of employment status.
• Employers utilizing the E-Verify system must post mandatory notices including: The Department of Homeland Security Anti-Discrimination Notice and the E-Verify Notice.

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