The process of interviewing for a job can be made more stressful for many applicants, particularly for immigrants, if a company engages in screening policies that, intentionally or not, discriminate.
An employer is legally permitted to ask an applicant if he or she is authorized to work in the United States. The employer may also ask if the applicant now or in the future will need employment sponsorship. If the applicant will need sponsorship, an employer may legally choose not to hire that person. However, if an applicant has indicated that he or she is authorized to work, the employer may not ask for evidence of such work authorization until the person is actually hired. A potential employer cannot ask an applicant whether he or she has a green card.
Once someone is hired for a job, the employer will need to complete Form I-9, Employment Eligibility Verification within three days. An employee must provide documentation evidencing both identity and his or her authorization to work. The I-9 form has lists of acceptable documentation for each category.
If an employee submits a document (or documents) that appears on the list, an employer cannot ask for a different type of document. Therefore, if a foreign national provides a valid Driver's license and a Social Security card that does not list a restriction "valid with INS work authorization only" then the foreign national has met the requirements of the I-9 form. Since the employee has submitted documentation to establish identity and work authorization, an employer would not be allowed to ask for a copy of the employee's green card or employment authorization card simply because the employee "appears" to be a foreign national. An employer cannot demand a specific type of documentation but must allow an employee to submit any documentation that satisfies the I-9 requirements.
A future blog entry will focus on the requirements of E-Verify and what it means for employers and employees.
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YEE DURKIN & PURI LLP 74 Trinity Place, Suite 1301 NY, NY 10006 Tel: (212) 748-3335
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About Yee Durkin & Puri LLP
- Tsui Yee; Jennifer Durkin; Richa Puri
- We are partners in the law firm of Yee Durkin & Puri LLP located in downtown NYC. Collectively, the partners have more than 25 years of immigration law experience. We enjoy the challenge of helping our clients navigate the confusing American immigration system. This blog was created to share our perspectives on immigration issues and recent immigration developments that we hope might be helpful to our readers.