Together, the Immigration and Nationality Act of 1952 and the Immigration Reform and Control Act (IRCA) of 1986 govern U.S. immigration policy. IRCA was amended in 1990. With each new law, employers gain new responsibilities.
For each new employee hired, U.S. employers must complete a Form I-9, Employment Eligibility Verification. The I-9 establishes the employee’s identity and his or her legal work status. Employers can hire only those who are eligible to work legally in this country.
New employees must fill out Section 1 on their first day of work. Employers must complete Section 2 for each employee within three days after the person begins employment. You don’t send I-9s anywhere, but you must keep an employee’s I-9 on file for three years after his or her hiring date or for one year after the date of the person’s termination, whichever comes later. You don’t need to fill out 1-9s for independent contractors. Failing to complete I-9 forms can lead to significant penalties.
Download and print a current I-9 form at the U.S. Citizenship and Immigration Services (USCIS) web site, www.uscis.gov/files/form/1-9.pdf.
The government is cracking down on employers that hire illegal immigrants. Specifically, the Department of Homeland Security (DHS) and the Social Security Administration have new rules governing how employers must respond to “no-match” letters.
Either of those agencies can issue no-match letters if employees’ Social Security numbers do not match what the issuing agency shows in its database. Under the new regulations, employers have 30 days to respond to the issuing agency stating that it has double-checked the employee’s documentation and found its records to be correct, or can attribute the discrepancy to a clerical error. If the employee’s documentation shows the number the issuing agency lists as being in error, it becomes the employee’s responsibility to pursue the matter with the issuing agency.
If the employee still can’t produce valid I-9 documentation within 90 days, DHS regulations say you can assume the person is not eligible for employment. At that point, you’ll have to terminate the employee or run the risk that your organization “knowingly” employed an illegal worker.
IRCA states 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 may be sentenced to six months in prison.
Under the new regulations, even if the government later proves a worker is not able to work legally in the U.S., the employer will not be charged if it took all the necessary steps to verify the employee’s I-9 information.
The government now offers an electronic system, the Employment Eligibility Verification Program (EEV)/Basic Pilot, that allows employers to check employment documents. For information on registering for EEV, visit www.uscis.gov, and click on “Services and Benefits,” “Employer Information” and follow the related links to EEV.
How to comply
For most employers, compliance means correctly completing the I-9 forms and confirming the employee’s eligibility through the required documents.
The I-9 EEV form includes three lists of acceptable documents. Employers may accept either one document from List A (proves both identity and work eligibility) or one each from List B (identity) and List C (work eligibility).
Section 2 requires the employer to attest that the documentation “reasonably appeared to be genuine or to relate to the person presenting it.” This doesn’t mean you guarantee that the document is genuine. It means only that the documents looked authentic to you.
A “special instruction” on the USCIS web site says four documents have been removed from List A: Certificate of U.S. Citizenship, Certificate of Naturalization, Unexpired Reentry Permit and Unexpired Refugee Travel Document. However, the I-9 form being circulated by USCIS still includes these four documents. For a complete list of allowable documents, go to www.uscis.gov and click on “Services and Benefits,” then “Employer Information.”
IRCA prohibits you from discriminating against legal immigrants, and holds you liable for unreasonable document requests. You can’t ask the employee for any particular or additional documents. The employee chooses the documents, not you.
Finally, don’t even think about establishing 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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