Child Care Without Green Cards Also Legitimate

Parents who limit their search for child-care providers to persons holding green cards are unnecessarily limiting their options (“Many in O.C. Divided Over Wood’s Hiring of Immigrant,” Feb. 6). Non-citizens seeking employment in this country do not need a green card. In fact, by requesting that non-U.S. citizens or persons one suspects to be non-citizens to present green cards in order to get a job, employers may find themselves in violation of the anti-discrimination provision of the Immigration Reform and Control Act (IRCA). As recent events have shown, IRCA prohibits employers from knowingly hiring undocumented workers. However, in addition to imposing sanctions for such practices, IRCA also forbids employment discrimination based on national origin or citizenship status.

IRCA requires employers to examine an employee’s documents within three business days after beginning work for proof of identity and authorization to work in the United States. This requirement applies to citizens, as well as non-citizens. For these purposes, IRCA permits employees to show a variety of documents. Moreover, IRCA specifically allows the worker to choose which documents to present, not the employer. Thus, for example, a new hire may present a driver’s license and Social Security card to fulfill IRCA’s requirements, documents that give no indication of the worker’s citizenship status, but fulfill the mandate of IRCA.

If an employer insists upon seeing additional documentation after a worker has presented papers that reasonably appear to be genuine on their face, then that employer has violated the law and faces prosecution by the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC). In the context of hiring a child-care provider, OSC likely would not have jurisdiction. It should be noted, however, that requesting specific documents even under this circumstance would violate the spirit of IRCA.

The pool of workers authorized to work in the United States is a large one, composed of persons holding a panoply of legitimate documents, including but not limited to “green cards” that demonstrate they may lawfully hold jobs here. (These include) U.S. citizens, persons granted political asylum, admitted as refugees, permanent residents, or persons granted amnesty under IRCA, among others.

Employers are not expected, nor obliged, to become experts in immigration law or in the identification of the INS documents relating to those classes of workers. However, employers must permit all workers, regardless of national origin or perceived citizenship status, to select the documents of their choosing as evidence of their identity and work authorization in order to comply with IRCA.

WILLIAM HO-GONZALEZ

Special Counsel, Immigration-Relate Unfair Employment Practices

U.S. Department of Justice, Washington, D.C