There are six million illegal immigrants in the United States and tough federal sanctions against businesses that hire them. But your business can benefit from federal immigration law by taking advantage of visa programs that help you hire foreign workers.
In 1990, Congress nearly tripled the number of employer-sponsored permanent immigrants allowed to enter the United States each year. It also established five separate preference categories that together allocate more than 140,000 work visas each year. That's in addition to the 675,000 "green card holders" allowed into the country each year based on family relationship or employer sponsorship.
The visa process can be complex, and hiring foreign workers requires a basic knowledge of the most commonly used visa categories.
The Immigration Reform and Control Act of 1996 (IRCA) prohibits employers from recruiting, hiring or employing aliens unauthorized to work in the United States. Companies violating the law face civil and criminal liability.
IRCA also requires you to make sure employees are eligible to work in the country by filling out an Employment Eligibility Verification Form, or I-9, for each new hire. A new employee has three days to produce original documents proving his identity and work eligibility. The documents, driver's license, green card, etc., must be chosen from a list of approved documents on the back of the I-9 form.
It is your responsibility to ensure that the I-9s are properly completed with signatures from you and employees.
Keep the I-9 form in your files for three years after the date of hire or one year after the date of termination, whichever is later. You must update employees' I-9s each time their documents expire. Because these forms must be available for inspection during an audit by either the INS or the U.S. Labor Department, keep your I-9s separate from personnel files.
Avoid common I-9 mistakes
As simple as the I-9 appears, many employers continue to overlook it, don't complete it accurately, or store it improperly.
Your best bet: Institute a uniform procedure for completing I-9 forms and educate your hiring managers. This will help defend you in a government audit because employers are considered to have complied with IRCA if they made a "good faith" attempt.
To avoid a discrimination charge, don't ask for the documents for I-9 compliance until after you hire an individual. Keep the I-9 information separate from personnel files. Also never require more or different documentation from what is listed on the I-9 form. Treat all new employees equally. Don't request additional documents for foreign-looking workers.
Finally, you can't specify which documents from the I-9 list you'll accept from a new hire. Such practices are referred to as document abuse and can carry fines ranging from $100 to $1,000 per violation.
Jan M. Ritchie is an attorney with Harvey, Pennington, Cabot, Griffith & Renneisen Ltd. in Philadelphia.
For more details on the I-9 process ...
Contact the Immigration and Naturalization Service's employer information hotline at (800) 255-8155 or visit www.usdoj.gov/crt/osc.
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