2009 July: Keeping it Legal

2009 July: Keeping it LegalOf course, you probably already know that it is unlawful for an employer to knowingly hire someone who is not authorized to work in the United States. As a result of The Immigration Reform and Control Act of 1986, you have the responsibility to determine the identity and employment eligibility of every employee hired after November 6, 1986.

The completion of Form I-9, Employment Eligibility Verification, is required of all new employees, both U.S. citizens and non-citizens and satisfies your obligation to comply with the Act. “The form must be completed within three business days of hire, unless the employee is being hired for less than three days, in which case it must be completed at the time of hire,” says Elaine Martin, managing attorney at Martin Immigration Law in Dallas, Texas.

The I-9 is accompanied by a list of acceptable documents that determine identification and work eligibility. This proof must be presented to the employer when the I-9 is turned in. Employees may present either one document from List A, or one from both B and C.

“The items in List A prove both the person’s identity and their eligibility to work in the United States. Employees who do not provide employers with a document from List A must show a document from List B to prove their identity, and a document from List C to prove employment eligibility,” says Martin. There are fines associated with not having proper documentation. “It costs about 36 pepperoni pizzas to pay for a $500 fine,” says Joe Pianese, owner of Greek Pizza Kitchen in Tarpon Springs, Florida.

“Employers may not suggest, hint or advise an employee of what to bring in; they must allow the employee to bring in whatever they can from the lists included with the I-9 form,” says Martin. She suggests that employers give employees a copy of the list that’s attached to the I-9 form and inform them of the deadline for satisfying the identification and employment eligibility requirements. Be specific about the day and date this must be done.

There is a reason why it is unlawful to tell an employee what to bring in with their I-9, such as telling them that you need to see a “green card” or their driver’s license and social security card. “People tend to assume that if somebody has a very strong foreign accent or barely speaks English, they may not be a U.S. citizen, when in fact they could be,” says Martin. “There are protections on discriminating on the basis of race, immigration status, citizenship, or national origin.” Therefore, do not ask anything of anybody that would suggest that you’re assuming whether or not they are a U.S. citizen, such as where they were born, if they have a green card, when they came to the U.S. or if they are here legally. This works both ways — someone may appear to be a U.S. citizen but they are not.

You must see the employee’s original documents, with the exception of a birth certificate, in which case a certified copy is acceptable. Whether you make copies of the documents for your records is up to you. “The employer can make copies but is not required to,” says Martin.” If the employer does make copies, it must be done for every employee across the board, not just for somebody that they think is a foreign national.”

What should you do when a new employee shows you a document and you question its validity? Martin says that employers can not inquire if a document is authentic unless they have a very strong reason to believe that it’s fraudulent. Having a funny feeling about it or hearing from another employee that it is fake is not a valid reason to question it. “Unless you have a really strong basis for believing that a document is fraudulent, employers need to accept it,” she says. There is a verification process called e-verify that Martin says is voluntary for most employers, but is required for all employers in Arizona and South Carolina, employers in Mississippi with over 250 employees.

When an employee has satisfied the I-9 requirements, fill out Section II of the form. Completed I-9 forms are to be retained by the employer. “There is no requirement in the legislation about where the I-9 forms must be filed. However, they must be somewhere where they could be available for inspection within two days if the Department of Labor or Department of Homeland Security wants to audit them,” says Martin. “They need to be kept for either three years, or for one year after the employee is terminated, whichever is longer. So that means that every employer needs to have an I-9 form for all of their existing employees, and for anybody who was employed within the past year.” Pianese keeps his forms secure in a locked filing cabinet and only approved supervisors have access.

Section III of the I-9 form is for the employer to update things like an employee’s name change or the expiration date of a document. Martin recommends that both the employer and the employee track the expiration dates of documents that will expire so that the extension process will be started in a timely manner. Employees with an Employment Authorized document (EAD) must have a new EAD before the current one expires to be able to continue working. “If the EAD renewal was filed 90 days before expiration and has still not been approved, the employee might be able to get it expedited, but that’s not guaranteed,” says Martin; however, if an employee is in temporary (non-immigrant) status and has a timely-filed extension of status pending but does not have the updated document, the receipt for that extension is enough for them to continue to work for the same employer.

The I-9 form may be the most important document included with your personnel records. You can order a supply of forms and find out more about it by logging on to www.uscis.gov and typing “Employment Eligibility Verification” in the search box. 

Interview Questions

Martin says that there are very specific questions that an employer can legally ask during the hiring process to establish whether or not a new employee will need sponsorship. The Office of Special Counsel for Immigration Related Unfair Employment Practices has approved this specific wording for employers to ask during the interview process.
1. Are you legally authorized to work in the United States: yes or no?
2. Will you now, or in the future, require sponsorship for employment VISA status (e.g. H1B status): yes or no?

Sharon Anne Waldrop is a freelancer writer in Georgia. She specializes in human resources topics.