It can be confusing when immigration laws seem to conflict with other employment-related laws such as tax law and wage and hour laws.  Each area of law has its own definitions, purposes and priorities that may not match other areas of law.  Tax law, wage and hour laws, and I-9 rules are common examples.

Tax laws and immigration law:  Individuals who live abroad can become "tax residents" of the United States and required to file resident tax returns and pay taxes as U.S. residents even if they don’t have a home in the United States or have immigration approval to live in the United States.  U.S. tax law applies a formula to determine if a visitor has spent enough time in the United States over three years to become a "tax resident" even though they live abroad.   Visitors to the United States and workers approved for temporary employment in the United States who live and work abroad and only come to the United States as needed may trigger taxation as U.S. residents.

Wage and hour laws and immigration law:  Under wage and hour laws, workers must be compensated for work performed.  But what if the person wasn’t authorized for employment under U.S. immigration law and somehow worked anyway?  Despite an employer's efforts sometimes people choose to work as “volunteers” without pay because they weren’t authorized for employment in the United States, or start work before their immigration status for employment is approved, or their employment authorization lapses, or they work without proper immigration approval either due to ignorance or misunderstanding of the rules.  Employers always need to use best efforts to avoid any work by individuals who aren’t authorized for employment.  Employers may be subject to penalties in an immigration enforcement action.  But don't add a wage and hour or income tax reporting and withholding violation, that only makes it worse.

Labor law and immigration law:  The National Labor Relations Act (NRLA) and U.S. immigration law don't entirely line up.  The NLRA extends the same protections to undocumented workers as U.S. workers and workers with immigration approval for employment.  But workers are not eligible to recover back pay for any periods of time when they didn't have lawful employment authorization under U.S. immigration law.  Even so, U.S. immigration law requires employers to accept documentation that appears valid for I-9 purposes and bars employers from re-verifying I-9s except under limited circumstances such as when the documents expire (except not green cards or passports that expire).  Employers aren't allowed to re-verify I-9s to try to reduce the number of employees eligible for a back pay award.

So employers may encounter situations in which it seems impossible to comply with U.S. immigration law without potentially violating another employment-related law.  It’s critical to cure immigration violations as soon as they're discovered.  The law doesn't allow employers to violate immigration law in order to comply with other laws, despite inconsistent requirements.

Post by Leigh Cole, Esq.