BY PATRICK HURLEY
Special to the Examiner
Recent workplace raids and arrests of undocumented workers by Immigration and Customs Enforcement should serve as yet another reminder to all employers to ensure that their hiring and record-keeping practices comply with immigration laws.
What are the penalties for employing undocumented workers?
The 1986 Immigration Reform and Control Act (IRCA) imposes penalties for employing workers who do not have U.S. work authorization. Hiring such workers can result in fines, loss of access to government contracts and other penalties. In addition, knowingly hiring employees without work authorization may result in criminal penalties.
What is an I-9 form and who needs one?
Every employee hired to perform labor or services in return for wages or other remuneration must complete an I-9 Employment Verification Form to show they are authorized workers. Uncompensated volunteers are not subject to I-9 rules. Additionally, someone hiring an independent contractor is not responsible to complete the I-9 for the contractor or the contractor’s employees. However, an employer may not use an independent contractor to knowingly obtain the services of unauthorized workers.
What documents must be obtained and how do I know if they are authentic?
The I-9 form lists the documents that employees must present to prove their identity and work authorization. A U.S. passport or green card proves both identify and work authorization. A driver’s license and Social Security Card submitted together prove identity and work eligibility. Employers may not tell employees which documents they must present.
An employer is only obligated to examine the employee’s documents and, if they reasonably appear to be genuine and relate to the person presenting them, the employer must accept them. Failure to accept reasonably genuine documents could subject an employer to liability for employment discrimination.
When must these things be done?
The I-9 form should be completed when an employee begins work and, within three business days of the hiring date, the employee must provide the documents proving work authorization. It is important to note that IRCA prohibits “citizenship status” discrimination and employers cannot use the verification procedure to discriminate against job applicants that appear to be foreign. Businesses should be careful about having potential employees complete the I-9 form before the first day of employment because the form asks for information about national origin and if the worker is not hired it may result in a discrimination claim. In any event, an employer’s policy regarding when the I-9 is completed should be applied consistently to all new employees.
What records must an employer maintain?
I-9 forms for all current employees must be retained. Employers must also retain I-9 forms for terminated employees for three years from the date of hire or one year after the employee is terminated, whichever is later. An employer is not obligated to keep copies of the supporting documents. Immigration attorneys disagree as to whether employers should retain these documents or not. The most important thing is for a business to be consistent.
What about workers with only temporary work authorization?
If an employee’s work authorization is temporary – such as an employee in H-1B status –it is important to verify that work authorization has been extended as the expiration date approaches. An organized record-keeping procedure should be utilized to ensure that an expiration date is not missed.
How does an employer deal with a Social Security Administration (SSA) “no-match” letter?
The SSA sends “no-match” letters when the name or Social Security number of a worker does not match SSA records. Employers should understand that no-match letters are (italics)not(end italics) notices of immigration violations. Employers should check documents to ensure that a mistake was not made in reporting the employee’s name or Social Security number, but terminating an employee based solely on the receipt of a no-match letter may result in violation of the antidiscrimination provision of IRCA. The Department of Homeland Security has proposed new rules creating additional obligations on employers receiving no-match letters, but these rules are not yet in effect.
For additional information, visit the Web sites: www.uscis.gov, www.visalaw.com, www.nilc.org.
This article is for general information purposes only. It is not intended as a substitute for specific legal advice from an attorney.
Patrick Hurley is an immigration attorney in Seattle and writes this column on a volunteer basis. He is licensed by the District of Columbia and an active member of the American Immigration Lawyers Association. Patrick is a graduate of the George Washington University Law School in Washington, D.C. and has worked in the immigration and refugee field in Seattle, Washington, D.C., Kenya, and Thailand.† He is also a pro bono attorney for the Northwest Immigrants Rights Project and Chinese Information Service Center.†If you have questions or topics for this column, please e-mail [email protected]