Playing By the Rules:
A Guide for U.S. Employers
The current immigration debate isn’t just about
undocumented persons in the United States, it’s
also about U.S. employers hiring foreign
workers. In many situations, companies hire
foreign nationals who are already in the United
States or who are interested in coming to this
country to work. The following are guidelines
that all employers should keep in mind:
1. Carefully audit the company's I-9
compliance, take corrective action, and be
prepared for sudden employer-sanctions
enforcement.
Every employer is required to have an I-9 form
completed for each employee hired since Nov. 6,
1986, and potentially faces up to $1,000 fines
per worker (alien or not) for failure to file
the technical requirements. In the last year,
Immigration and Customs Enforcement has filed
criminal charges against employers who commonly
employ undocumented workers.
Ensure that employees present original documents
to establish their identity and employment
eligibility within three business days of the
date employment begins. (If they cannot produce
the required documents by then, employees must
produce receipts showing they have applied for
the documents; they then must present the
document within 90 days of hire.)
2. Maintain all I-9s and take stock of your
I-9 compliance.
It’s a good practice to have all new hires
complete and sign Section 1 of the I-9 on their
first day of work, but never before you extend a
job offer to the applicant. Make sure you
carefully review each employee’s documents to
make sure they are on the I-9 list of acceptable
documents. Review the documents to see if they
appear to be genuine.
Employers should always remember the following
practices when obtaining employee information
for I-9s:
• Don’t ask for any particular documents or for
more documents than the I-9 requires.
• Don’t consider the expiration date of any of
the I-9 documents.
• Do keep I-9s and copies of document for three
years after the employee’s date of hire or one
year after the date of termination, whichever
comes later.
• Do keep I-9 documentation separate from the
employee’s personnel file to protect yourself
from a discrimination claim.
3. Keep all workers in legal status.
All employers should make sure that aliens are
in valid immigration status or have a valid,
unexpired employment authorization document. If
a worker requires an extension of status, make
sure to apply for one several months in advance.
The short "overstay" results in automatic
cancellation of the alien’s visa, which can only
be replaced at a U.S. consulate in the alien's
home country. Technical violations of U.S.
immigration status that persist for more than
180 days might lead to a three-year or ten-year
bar of the worker from the United States.
4. A U.S. employer cannot engage in
discrimination on the basis of citizenship
status.
Employers are prohibited from discriminating
against persons in hiring, discharging, and
recruiting and referring for a fee because of
their citizenship status. Permanent and
temporary residents, refugees, asylees, and U.S.
citizens are all protected. Fines are up to
$1,000 per person for violations where the
employer requests more or different documents
than are required, or refuses to honor documents
that reasonably appear to be genuine. Other
types of discrimination carry fines of up to
$2,000 per person for the first offense, $5,000
for the second offense, and $10,000 for the
third and subsequent offenses. In addition to
fines, employers can be ordered to pay lost
wages for applicants not hired or employees
discharged in violation of discrimination
provisions. Employers can be ordered to hire
applicants or reinstate discharged employees if
discrimination is found.
5. Immigration law is complex and rapidly
changing.
Immigration law is complex and is derived from
federal statutes, federal court cases, and
federal rules. It involves the Department of
Labor, the Department of Homeland Security and
the Department of State. A tremendous backlog of
cases and processing delays has resulted from
the involvement of several different agencies in
the immigration process.
The status of employees in the U.S. is something
that should be in the forefront of every
employer’s mind. An employer should attempt to
stay informed of all developments in this
important area of the law. An attorney who is
experienced in immigration law can help you with
all of your questions today.
