Requiring Proof of Permanent Residency from Employees

by David H. Nachman, Esq., Ludka Zimovcak, Esq., Snehal Batra, Esq. and Samantha Chasworth, Esq.


Immigration Attorneys

There is no way around it. The past few years have been tough for employers. With companies facing unprecedented struggles and retaining employees more difficult than ever, many employers are at their wits end. Employers who have a number of foreign national employees, some have reflected on creative ways to help retain employees. Many have then wondered whether they can require proof of permanent U.S. residency to help ensure that their employees will be there for the long haul. Many have also wondered whether they can refuse to hire a person whose employment documents have an expiration date of less than a year.

While we can all appreciate employers struggling to retain employees, employers must remain cautious in trying to take such steps to helping ensure that employees remain around. There are federal and state laws in place, after all, pertaining to immigration or citizenship status of which they could run afoul. Here, we will discuss the problems of employers requiring proof of permanent residency from employees and applicants.

Requiring Proof of Permanent Residency from Employees

Employers with four or more employees must be aware of the fact that they are prohibited from discriminating in employment decisions based on citizenship status unless it is done so in order to comply with a law, regulation, or executive order, or pursuant to a requirement in a federal, state, or local government contract. This prohibition is established in the U.S. Immigration and Nationality Act (INA) which prohibits discrimination in hiring, firing, recruitment or referral for a fee. Employers may not require that employees or potential employees have a green card and, therefore, have permanent resident status. Furthermore, employers are not permitted to consider when employment documents are set to expire in their hiring and other employment decisions.

The U.S. Department of Justice (DOJ), which is tasked with the enforcement of the INA’s anti-discrimination provisions, has explicitly stated that employers may not dictate which documents they will accept from a worker. They have also stated that a document’s future expiration date may not be considered. You see, federal law mandates that employers complete an I-9 Employment Eligibility Verification Form for all new hires in the U.S. There are strict limits on the documents an employer may require in order to complete the employment verification process and to verify the identity of a new hire. Employers may not stray from the list of acceptable documents set forth on the last page of the I-9 Form. They cannot require more or additional documentations. They cannot specify which documents from the I-9 Form list that should be provided by the prospective employee.

Many employers have, as of late, run afoul of the anti-discrimination provisions of the INA. As such, the Immigrant and Employee Rights (IER) Section of the DOJ has been actively pursuing such cases of citizenship status discrimination. Companies found in violation of such federal anti-discrimination laws have been assessed civil penalties as well as being required to revise company policies and procedures.


About The Author


David H. Nachman, Esq. is one of the Managing Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. The Attorneys in our Law Firm assist clients with waivers, marriage cases, citizenship applications, I-130 sponsorship for family, etc.
If you have any questions about how the immigration and nationality laws in the United States may impact you or your family members or if you want to access additional information about the United States or Canadian immigration and nationality laws, please feel free to get in touch with the immigration and nationality lawyers at NPZ Law Group. You can send us an email at info@visaserve.com or you can call us at 201-670-0006 extension 104. In addition, we invite you to find more information on our website at www.visaserve.com


Ludka Zimovcak, Esq. is a Managing Attorney at NPZ Law Group, PC. Mrs. Zimovcak's passion for excellence in immigration law derives from her own family's first-hand immigration experiences. She is fully licensed to practice as an Attorney in Slovakia and New York


Snehal Batra, Esq. is Managing Attorney of our Raritan, NJ office at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. Ms. Batra is an Indian-American attorney with a passion for immigration law which derives from being an immigrant herself. Having been born in India and raised in New Jersey, Ms. Batra understands firsthand the many difficulties and challenges that immigrants commonly experience while engaged in the U.S. immigration process. As such, she is eager to help families, businesses and individual immigrants to realize the American dream.


Samantha Chasworth, Esq. is Counsel at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. Ms. Chasworth earned a Juris Doctorate (JD) from the St. John's University School of Law in Queens, New York, where she was an editor on the Journal of Civil Rights and Economic Development and participated in numerous immigration and family law clinics and internships including time at the US-Mexico Border at the Karnes County Civil Detention Center.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.