Over the last few years, the Department of Homeland Security's Immigration and Customs Enforcement division (ICE) has increased the number of employment audits done for immigration purposes. One result from the increased enforcement is that employers are being much more cautious in their hiring decisions, often requiring so much from applicants that they end up breaking employment hiring laws.

This can be a "Catch 22" for employers, who must tread carefully between immigration laws and employment laws.

Under the Immigration and Nationality Act, section 274A, employers may not knowingly hire an immigrant who is unauthorized to work in the U.S. There are many documents that an employer can check to ensure that an applicant is eligible to work. While some undocumented immigrants will forge these documents, the employer must only ensure that the documents appear to be genuine. Challenging a genuine document may raise employment law issues.

Under federal and state employment laws, employers may not discriminate against employees on the basis of national origin or citizenship status. This includes discrimination during hiring or recruiting. Some potential problems that could arise during hiring include posing demographic questions on applications, asking about citizenship status during an interview or using unequal hiring practices. Employers should treat all applicants the same during all stages of the application process and must give lawful reasons for not selecting a particular applicant.

Whether you are an employer considering hiring an immigrant or facing an employment discrimination lawsuit, or an immigrant who is the victim of employment discrimination, speak with an attorney experienced in both immigration and employment law.

Source: INA ยง 273A, "Unlawful Employment of Aliens."