Immigration Obligations for Employers and Professional Employer Organizations

December 2014Articles New Jersey Lawyer Magazine

This article was originally published in the December 2014 issue of New Jersey Lawyer Magazine, a publication of the New Jersey State Bar Association, and is reprinted here with permission.

All U.S. employers, including professional employer organizations (PEOs), have responsibilities under U.S. immigration laws. The Immigration Reform and Control Act (IRCA) prohibits unfair immigration related employment practices and makes all U.S. employers responsible for verifying the “employment eligibility’” and “identity” of all employees hired to work in the United States after Nov. 6, 1986. Since the obligation to verify is triggered by “hiring,” this responsibility typically falls to the PEO.

The specific unfair immigration-related employment practices prohibited under IRCA require an employer with four or more employees not discriminate because of national origin or citizenship when hiring, discharging, or recruiting or referring for a fee. For example, IRCA prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract. It also prohibits employers from always hiring temporary visa holders or undocumented workers over U.S. citizens who maybe qualified for the position.

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