08 May Make Sure Employees Are Eligible to Work in the United States
Under the Immigration Reform and Control Act, employers are required to examine certain documents, such as drivers’ licenses, when they hire new employees. They must then record the information on I-9 forms and keep the documents for a specified period of time.
Responsibilities
By law, employers must complete an I-9 Employment Eligibility Verification form for each new hire and keep the forms on file. Employers must retain the completed I-9 forms for three years after the date of hire or one year after the date employment ends, whichever is later.
Employers are generally not required to verify independent contractors or their workers. But there’s a catch: If companies knowingly use subcontractors who employ unauthorized alien workers, they can expose themselves to potential I-9 violations.
The classification “independent contractor” may not be enough to establish innocence.
Court cases highlight the fact that some companies, even corporate giants, fail to understand the employment verification rules. An employer can face civil and criminal penalties for knowingly hiring illegal immigrants or failing to comply with the I-9 regulations. For example, fines for record keeping violations run from $110 to $1,100 each. Fines for knowingly employing an unauthorized alien range from $375 to $16,000 for each violation. Employers determined to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity, may be fined, and in certain situations, may be subject to criminal prosecution.
Federal investigators do routine audits of companies throughout the country, checking the I-9 forms that are supposed to be filled out for each U.S. worker. To protect your company, here are some steps to take:
Know which documents you can ask for. The table in the I-9 form lists some of the acceptable documents.
Let employees choose. Don’t ask for particular documents or more documents than required. Employees or applicants can choose the proof they want to offer and companies have faced lawsuits for specifying certain documents. You are protected as long as the documents prove identity and work authorization and are listed on the back of the U.S. Citizenship and Immigration Services (USCIS) I-9 Form (see list below). You must fill out an I-9 for all hires — citizens and non-citizens. If you use companies that provide your firm with outside contractors, this responsibility can be shifted to them.
Accept documents that appear genuine. But you aren’t responsible for confirming their authenticity. Don’t inaccurately conclude that documents are false and don’t routinely investigate authenticity. You aren’t expected to be an immigration expert, but you should have sufficient knowledge to understand if a document is consistent with an employee’s claimed status.
Avoid restrictive hiring practices. First, you need a policy that requires hiring qualified people with documentation, regardless whether they’re citizens or permanent residents. For qualified applicants, don’t consider the expiration date of work authorization or ask for an INS document to confirm the date. You can, however, require new hires or employees to periodically show proof of continuing eligibility.
Don’t jump the gun. You can conduct the I-9 verification process before a new hire starts work, but never initiate it before a job offer is made and accepted. Not hiring someone after seeing documents that reveal citizenship status, age and national origin could be grounds for a discrimination claim.
Employers must complete the I-9 verification process within three business days of an employee’s first day on the job. The only exception occurs when new employees lack a required piece of documentation and show a receipt proving they have applied for replacement documents. In such cases, all documents must be presented and the I-9 form completed within 90 days of the first day of work.
If the documentation is not produced, the person cannot continue to work. Your company can suspend the employee without pay until the documents are obtained.
These legal requirements may seem difficult, but in the long run, you save legal hassles and financial penalties by complying.
Payroll Partners is committed to helping clients stay informed about payroll and human resource news. This article is intended to provide readers with general information on human resources matters. The article does not constitute, and should not be treated as professional advice regarding the use of any particular practice. All efforts have been made to assure the accuracy of the information. Payroll Partners does not assume responsibility for any individual’s reliance upon the information provided in the article. Readers should independently verify all information before applying it to a particular fact situation, and should independently determine the impact of any particular practice. If you are seeking human resources advice, you are encouraged to consult a human resources professional.