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Immigration law: How to walk the line with the I-9

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in Compensation and Benefits,Employment Law,Hiring,Human Resources

THE LAW. The Immigration Reform and Control Act (IRCA) of 1986 makes it your responsibility to hire only people who can legally work in the United States. That includes U.S. citizens, U.S. nationals and aliens authorized to work in the country. IRCA requires employers to verify workers' identity and employment eligibility by completing an Employment Eligibility Verification Form (I-9) for each new hire.

The U.S. Labor Department and the newly renamed U.S. Citizenship and Immigration Services (CIS) enforce IRCA. (The CIS is the successor agency to the Immigration and Naturalization Service, which until recently was known as the Bureau of Citizenship and Immigra-tion Services.)

WHAT'S NEW. Anti-terrorism initiatives are having a far-reaching impact on U.S. immigration laws. This has not only affected immigrants of all types, from green card holders to frequent visitors, but also employers of foreign workers and organizations engaged in international business as well.

As a result, it's getting harder to hire certain foreign workers, especially professionals. One reason: Only 65,000 H-1B visas were made available for fiscal year 2004, which began Oct. 1. That's a dramatic cut from the 195,000 H-1B visas available during fiscal 2003. The new cap could be reached sometime in midcalendar 2004.

At the same time, it's getting more costly to hire foreign workers. Immigration officials plan to again raise fees for citizenship applications and other visa services.

Meanwhile, expect Congress to expand a voluntary pilot program that lets employers electronically verify (via phone or computer) new hires' work authorization documents. The bill (H.R. 2359), which passed a House committee, would extend the program five more years and expand it to all states. So far, only California, Florida, Illinois, Nebraska, New York and Texas offer electronic verification.

HOW TO COMPLY. IRCA requires employers do the following:


  • Have employees fill out their portion (Section I) of Form I-9 within at least three business days of the hire date. (You don't need to complete I-9 forms for independent contractors.)
  • Check employee's documents to make sure they're on the I-9 list of acceptable records and appear genuine. Then complete the em-ployer's section of Form I-9 (Section II).
  • Retain employees' Form I-9s for at least three years after their hire date or one year after termination, whichever is longer. You don't need to send I-9 forms anywhere, just be able to present them for inspection in case a CIS or DOL office requests it (with three days advance notice).

While you're not re-quired to make and keep copies of employees' supporting I-9 documents, such as Social Security cards, it's a good idea. If you do make copies, do it consistently for all new hires.

IRCA also prohibits you from discriminating against legal aliens, and it holds you liable for unreasonable document requests. That means you can't ask the employee for any particular documents or additional documents. The employee chooses the docu-ments, 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.

Resources: Immigration law

1. I-9 details. For information on your Form I-9 duties, visit www.immigration.gov/graphics/howdoi/ faqeev.htm.

2. Printable I-9. For a copy of the I-9, visit the CIS site at www.immigration.gov/graphics/formsfee/forms/files/i-9.pdf.

3. Employer handbook. Download a free copy of the CIS' Handbook for Employers, at www.immigration.gov/graphics/lawsregs/handbook/hand_emp.pdf.

4. Links to CIS offices. Find local locations at www.immigration.gov/graphics/fieldoffices.

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