The Employer’s Responsibilities Regarding Immigration
Immigration is a controversial topic, especially in the last ten years. And no matter what side of the spectrum you are on, there is one thing for sure: the law is the law.
Here’s a section of my book “The Employee Rights Handbook” that discusses inspections and employer’s immigration law requirements.
The Immigration Reform and Control Act of 1986 (IRCA) states that employers should hire only U.S. citizens and aliens who are authorized to work in the United States. The law requires every employer to verify the employment eligibility of every worker hired to avoid civil fines and criminal penalties for failure to comply with the law’s record-keeping requirements. Companies must follow fixed guidelines regardless of company size or the number of employees being hired. The Immigration and Naturalization Service (INS) has developed a form (I-9) that employers must complete and retain in order to verify employment eligibility for all employees.
Essentially, employers have five verification obligations:
1. Employees must be instructed to fill out their portion of Form I-9 when they begin work.
2. Employers must check documents establishing employees’ identity and eligibility to work.
3. Employers must properly complete the remaining portion of Form I-9.
4. Employers must retain the form for at least three years or until one year after a person leaves employment, whichever is later.
5. Employers must present the form for inspection to INS or Department of Labor officials upon request after three days’ advance notice.
All companies must verify the identity and work authorization of every person hired. Evidence must be examined, collected, and saved by the employer to refute charges that it knew it was hiring an unauthorized alien.
Form I-9 must be completed and attested to by the new employee at the time of hiring; the company must review all documentation and submit the form within three business days of the hiring. The applicant has 21 additional business days to furnish documents that are lost or not yet processed. Copies of the INS form may be obtained from any district INS office and photocopied for future use by other applicants.
All completed I-9 forms must be saved for at least three years after the hiring, or for one year after the person is terminated, whichever occurs later; these rules apply to temporary workers and independent contractors as well. However, companies are not obligated to verify employment eligibility for people working as employees for such independent contractors.
Employers failing to follow the law are currently liable for fines ranging from $250 to $2,000 for each unauthorized alien hiring for a first offense; $2,000 to $5,000 for each unauthorized alien for a second offense; and $3,000 to $10,000 for each unauthorized alien for subsequent offenses. The law also imposes criminal penalties against companies and their principal officers up to $3,000 for each unauthorized alien with respect to whom a violation occurs, or imprisonment for not more than six months, or both.
STRATEGY: Speak to an employment attorney or contact a regional office of the EEOC or state discrimination agency if you believe that, although you are a U.S. citizen, you were denied a job because of a foreign accent, are foreign born, or were required to take a fluency exam or other tests not given to native-born applicants. Although the company may be acting properly pursuant to IRCA, it may nonetheless be violating your Title VII discrimination rights pursuant to the Civil Rights Act of 1964, as amended.
For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!
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