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Tags: federal | law | immigration | issues

Federal Law Alone Controls Immigration Issues

Federal Law Alone Controls Immigration Issues

By    |   Wednesday, 02 October 2019 10:25 AM EDT

The recent move by New York City to ban the use of the phrase “illegal alien” and to impose draconian fines on employers with regard to hiring is going to cause much confusion. The 29-page “Legal Enforcement Guide” (“Guide”) just issued by the NYC Commission on Human Rights is a perfect example of Liberal legal mumbo jumbo at its worst.

It starts with the idea that using the phrase “illegal alien” may carry “negative connotations and may dehumanize immigrants.” The Guide provides that the use of such a phrase “with the intent to demean, humiliate, or offend a person or persons constitutes discrimination” under NYC’s human rights law.

One huge potential problem for employers in NYC grows from the Commission’s position that, “It is unlawful to discriminate in the terms and conditions of employment because of a job applicant’s or employee’s actual or perceived immigration status or national origin.” Guide, pg 7. The Commission goes so far to say that even just “asking” someone about their immigration status may be unlawful because it could “cause them to feel” that they are “unwelcome, objectionable or not acceptable.” Guide, pg 21.

Does this mean that an employer in NYC cannot inquire about a prospective employee’s immigration status? Or that if an employer does ask the question, “Are you in the U.S. legally?” that such employer will be subjected to confiscatory penalties?

The fact is, regardless of what NYC may say, federal law alone controls the question of one’s immigration status, the issuance of work or other visas, and employers’ limitations on hiring. See: U.S. Constitution, Art. 1, Sec. 8, cl. 4 and Art. 1, Sec. 9, cl. 1; and Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889). NYC’s 29-pg diatribe on peoples’ “feelings” doesn’t change that legal reality. And one very specific thing that federal law requires that is that all job applicants—even those with foreign-sounding accents—must verify their eligibility to work in the U.S.

Federal law mandates that, at the outset of employment, employees must complete CIS Form I-9, Employment Eligibility Verification, to verify their identity and right work in the U.S. Employers can be fined and prosecuted under federal law for not obtaining and keeping on file an I-9 for each employee. Moreover, federal law prohibits a U.S. employer from knowingly hiring persons without proper work authorization.

Ironically, buried in its 29-page quagmire of emotional gobbledlygoop, the Commission admits these truths. For example, at page 7, the Guide states,

“The [Commission] acknowledges that different treatment of individuals based on immigration status may be explicitly required under federal or state law with respect to hiring.” The Guide goes on to acknowledge that federal law “allows employers to prefer to hire a U.S. citizen or national over a noncitizen.”

Do not be confused by all this madness. Federal law alone controls this issue, and you cannot be forced to hire noncitizens based on some local government’s policy about not hurting someone’s feelings.

This is one reason I address this issue in my new book, "Dan Pilla’s Small Business Tax Guide." I squarely address the issue of federal law requiring employers to verify every job applicant’s qualification to work in the U.S. Don’t run the risk of facing draconian federal fines and penalties for violating these requirements.

Dan Pilla is a tax litigation specialist with more than 40 years of experience helping people solve their IRS problems. He’s written 15 books, dozens of research reports and more than 1,100 articles on taxpayers’ rights issues, tax policy and administration, and IRS problems resolution. For more information, see: www.danpillabooks.com, and www.taxhelponline.com.

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The recent move by New York City to ban the use of the phrase "illegal alien" and to impose draconian fines on employers with regard to hiring is going to cause much confusion.
federal, law, immigration, issues
Wednesday, 02 October 2019 10:25 AM
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