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Restaurant Employment Eligibility

Restaurants are required, by law, to hire only individuals that can legally work in the United States. In recent years, food service establishments have come under scrutiny for hiring illegal immigrants to fill their kitchen staff. Whether this is done intentionally or not, hiring individuals that are not legally eligible to work in the United States can cause severe legal probles.

Potential employees must provide proof of their eligibility to work in the U.S. Employers must verify their eligibility and keep copies of their proof on file for several years, even if an employee leaves.

Proving Identification and Eligibility

All potential employees, whether foreign workers or U.S. citizens, must fill out Form I-9, which requires them to provide proof of identification and eligibility to work in the United States. The following table is taken from the I-9 Form and gives examples of acceptable identification. Candidates can either provide an item in column “A,” or two items, one from column “B” and one from column “C.”

A

B

C

Identity and Employment Eligibility

Documents that Establish Identity

Documents that Establish Employment Eligibility

U.S. Passport

Driver’s license or ID card

U.S. Social Security Card issued by the SSA

Permanent resident card or alien registration receipt card

ID card issued by federal, state or local government

Certificate of Birth Abroad issued by the Department of State

Unexpired foreign passport with temporary I-551 stamp

School ID card with a photograph

Original or certified copy of U.S. birth certificate

Unexpired employment authorization document with photograph

Voter’s registration card

Native American Tribal Document

Unexpired foreign passport with unexpired arrival-departure record and Form I-94 bearing the same name as the passport

U.S. military card or draft record

U.S. Citizen ID Card

Military dependent’s ID card

ID Card for use of Resident Citizen

U.S. Coast Guard Merchant Mariner Card

Unexpired employment authorization document issued by DHS

Native American tribal document

Driver’s license issued by a Canadian government authority

School record or report card (for people under 18)

Clinic, doctor or hospital record (for people under 18)

Day-care or nursery school record (for people under 18)

Verify Employee Eligibility

In order to make the employee verification process quick and easy, the United States Citizenship and Immigration Services (USCIS) has developed the online E-Verify tool. E-Verify is a database of over 425 million records from the Social Security Administration (SSA) and over 60 million records from the Department of Homeland Security (DHS). The database takes information from the employee’s I-9 Form and verifies that they are in the database. The SSA information assures that they are legally able to work in the United States, and the DHS information verifies their background and screens possible felons.

Restaurants Using Immigrant Labor

Since many natural born citizens are either over-qualified or unwilling to perform semi-skilled labor, the restaurant industry relies heavily on immigrant labor to fill their staffing needs. Immigrant workers must also be legally able to work in the United States. Here are some methods that foreign workers can use to legally work:

  • Work Visa. A work visa allows foreign workers to temporarily enter the country for the purposes of working. These types of visas are popular for foreign workers and employers looking for seasonal help.
  • Immigrant Visa. The immigrant visa is the first path to U.S. citizenship. This establishes an immigrant’s legal right to live and work in this country.
  • Employer Sponsorship. This is one of the more difficult forms of hiring a foreign worker. Restaurants that want to hire an overseas chef to train their staff temporarily can act as a sponsor for that worker.

 

Penalties for Hiring Illegal Immigrants 
Immigration Lawyer

Whether you are interested in sponsoring a foreign worker, or if you just want to make sure you are properly submitting and storing all immigrant worker information, you can hire an immigration lawyer that is well versed on the U.S.'s complicated immigration system.

The current policy on immigration in the United States does not have any measures for penalizing restaurants, or other companies, that hire illegal immigrants. As a result, many states are taking matters into their own hands and severely penalizing employers. One of the most extreme examples is the Arizona Workers Act of 2008. According to this policy, any establishment that knowingly hires illegal immigrants will have its business license suspended, on the first offense. A second offense will result in the license being permanently revoked.[1]

Immigration Reform

Since the turn of the 21st Century, there has been a bipartisan effort to reform immigration policy in the United States. Though it is still a very heated topic, most political parties agree that the new immigration policy is needed. Some of the topics debated with regards to immigration reform include:

  • It should address needs for future workers and undocumented workers already in the U.S.
  • It should strengthen national security by providing a foreign worker screening policy that will discourage illegal immigration.
  • The new policy should establish clear immigration laws that are vigorously enforced.
  • The reform should create a program that allows undocumented workers a path to permanent resident status.
  • It should create an employment eligibility and verification system that is efficient and effective.


[1]Arizona Immigration Law to Take Effect January 1, 2008,” Morgan, Lewis & Bockius LLP., http://www.morganlewis.com/pubs/ImmigrationAlert_ArizonaImmigLaw_17dec07.pdf (accessed January 26, 2009).


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