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Immigration: Know Your ‘Border Guard’ Responsibilities

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in Compensation and Benefits,Hiring,HR Management,Human Resources

Immigration reform was a hot topic in Washington during the first half of 2007, but Congress ultimately failed to pass legislation to tighten enforcement of decades-old laws that regulate which foreign-born workers are eligible to work in the United States.

The law  

Together, the Immigration and Nationality Act of 1952 and the Immigration Reform and Control Act (IRCA) of 1986 govern U.S. immigration policy.
    U.S. employers must complete a Form I-9, Employment Eligibility Verification, for each new employee to establish identity and legal work status. Employers can only hire only people who are eligible to work legally in this country.
    New employees must fill out Section 1—providing documentation of their eligibility to work—on their first day. Employers must complete Section 2—asserting that the documentation appears legitimate—within three days after the person begins employment. Failing to complete I-9 forms can lead to significant penalties.
    You don’t send I-9s anywhere, but you must keep them on file for three years after hiring an employee or for one year after termination, whichever comes later. You don’t need to fill out I-9s for independent contractors.
    Download and print a current I-9 form at the U.S. Citizenship and Immigration Services (USCIS) web site at www.uscis.gov/files/form/1-9.pdf. The form lists acceptable documentation employees can use to prove their eligibility to work in the United States.

What's new  

The government is cracking down on employers who hire illegal  immigrants, even as those workers gain more rights, especially regarding wage-and-hour issues and the Fair Labor Standards Act. Legitimate employees also have brought a series of lawsuits against employers who hire illegal workers. Using the Racketeer Influenced and Corrupt Organizations, or the RICO, Act—a law known for targeting gangsters—employees have argued their employers conspired to hire illegal workers in order to drive down wages.
    If you hire an employee and later discover he or she isn’t allowed to work legally in this country, you must fire the worker immediately. According to IRCA, if you knowingly hire illegal immigrants, you face fines of $100 to $1,100 per illegal worker, plus civil penalties up to $11,000 per violation. Violators also face six months in prison.
    Although it spent several weeks on comprehensive immigration reform in the spring of 2007, the U.S. Senate ultimately was not able to craft legislation that would satisfy all stakeholders in the immigration debate. Congress is unlikely to take up the issue again before the 2008 presidential election. In the meantime, look for more state and local immigration-reform legislation. Several states have acted already. And, fairly or not, look for employers and the HR functions to bear much of the enforcement responsibilities. Your best bet: Make sure you document employees’ eligibility to work by thoroughly completing and maintaining up-to-date I-9 forms.

Electronic verification

The government now offers the Employment Eligibility Verification Program (EEV) called Basic Pilot, which allows employers to check employment documents electronically.
    For information on registering for Basic Pilot, visit www.uscis.gov, click on “Services and Benefits” > “Employer Information” > “Employment Eligibility Verification Program (EEV)/Basic Pilot.” For most employers, compliance means correctly completing the I-9 forms and confirming the employee’s eligibility through the required documents.
    Final note: IRCA also prohibits you from discriminating against legal immigrants, and it holds you liable
for unreasonable document requests. That means you can’t ask the employee for any particular or additional documents. The employee chooses the documents, not you.
    Finally, don’t establish a “U.S. citizens only” policy in hiring. It’s illegal. You can require U.S. citizenship for a particular job only if it’s required by federal, state or local law, or by government contract. 

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