Posts Tagged ‘Immigration Law’

Immigration Compliance and Form I-9

Tuesday, September 27th, 2016

Pursuant to the Immigration Reform and Control Act of 1986 (IRCA) employers are prohibited from hiring or continuing to employ foreign nationals who lack authorization to work in the United States. That law requires employers to verify the identity and work authorization of all new hires, and it establishes civil and criminal penalties for noncompliance. IRCA establishes a system of employment eligibility verification procedures that all employers must follow when filling a job. Employers are obliged to be an integral part of the government’s efforts to reduce illegal immigration.formi-9

IRCA makes it unlawful for any employer in the United States to knowingly “hire or to recruit or refer for a fee” or to knowingly “continue to employ” an individual who lacks authorization to be employed in the United States. The law applies to any employee hired after November 6, 1986. Employees hired prior to November 7, 1986, are “grandfathered,” and their status need not be verified.

To comply with the law, employers must verify the identity and employment authorization of each person they hire, complete and retain a Form I-9, Employment Eligibility Verification, for each employee, and refrain from discriminating against individuals on the basis of national origin or citizenship.

Employers must require all newly-hired employees to confirm their identity and eligibility to work in the United States.  Employers must complete Form I-9 for each person hired to perform labor or services in the United States in return for wages or other remuneration. Remuneration is anything of value given in exchange for labor or services. I-9 forms must be retained for specified periods of time including even after the employment relationship has ended, and it must be made available in the event of an audit or inspection. These compliance requirements apply to every new employee regardless of citizenship or alienage, even if there is no doubt as to the individual’s identity and employment authorization.

To confirm identity and employment eligibility, every new hire must produce an original document or a combination of documents that are designated by the federal government to satisfy that requirement.  A list of the acceptable documents is found on the last page of the Form I-9. The employer must accept whatever document or combination of documents from the List that the employee offers, so long as the document is original, unexpired, relates to the employee and shows no signs of tampering or counterfeiting.

The employer must ensure that the employee completes Section 1 of Form I-9 at the time of hire. “Hire” means when employment begins in exchange for wages or other remuneration begins. The time of hire is noted on the form as the first day of employment. Employees may complete Section 1 of Form I-9 before the time of hire, but no earlier than acceptance of the job offer. Review the employee’s document(s) and fully complete Section 2 of Form I-9 within three business days of the hire.

As you perhaps know the current I-9 form technically expired this past March 31.  However, until further notice employers should continue using this version until the Office of Management and Budget (OMB) approves and issues an updated I-9 form. The public was able to provide comments on the proposed I-9 changes until April 27, 2016.  For a detailed summary of the proposed changes, see USCIS Seeks Comments on Proposed Changes to From I-9 webpage.

If you need help thinking through an Immigration issue or want to dive deeper into this topic please reach out to our Advice & Resolution team.

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CAI Advice & Resolution team member Renee Watkins is a seasoned HR professional with a diverse background in Human Resource. Renee provides CAI members with practical advice in a wide-range of human resource functions including conflict resolution, compliance and regulatory issues, and employee relations.

9 Things You Should Know About Immigration Law and I-9’s

Tuesday, April 15th, 2014

I9 paperworkImmigration law can often be a tricky subject for employers to tackle. To ensure you’re keeping your organization compliant, here is some helpful information to remember:

1. Employers who have constructive knowledge that an employee is not authorized to work, but continue to allow the employee to work are subject to fines.

2. Although employers are not required to do I-9’s for contractors, they have a duty to ensure to the best of their ability that contractors are legally authorized to work in the United States.

3. Employers who hire out-of-state employees where there is no company representative to handle the I-9 process may contract with someone to complete I-9’s on their behalf, such as a notary public. (Note: Texas does not allow notaries to perform this service.)

4. Employers cannot require an employee to present documentation to support the Section 1 information. The employee attests by signature that this information is correct.

5. Employers or their agents are not required to notify the U.S. Immigration and Customs Enforcement (ICE) of illegal aliens discovered through the I-9 process, and it is not recommended that you do so.

6. The I-9 form cannot be completed until a job offer is made and accepted. Because the I-9 requires date of birth and identifies whether the person is a U.S. citizen or alien, it could be a source of potential discrimination charges if an applicant were required to complete it pre-offer and then not be hired.

7. The I-9 Form states that Section 1 should be completed and signed by the employee on the day employment begins. This is defined as the first day of work where the employee is providing labor or services in exchange for pay.

8. It is fraud if someone other than the employee fills in Section 1 but does not provide the required information and a signature in the Preparer and/or Translator Certification box, or if HR or a company representative fills in missing information in Section 1 for the employee.

9. ICE investigations are lead-driven. Leads that appear to have some merit must be further investigated to avoid constructive knowledge and to resolve the issue.

Ogletree Deakins’ attorney Bernhard Mueller will provide additional information and updates regarding immigration law at the 2014 Employment and Labor Law Update. The conference will take place at the McKimmon Center in Raleigh on May 14 and May 15. In addition to immigration law, presenters will cover wage and hour issues, NC legislature, ADA, minimizing lawsuits, protecting proprietary information, and more. Register today at www.capital.org/lawupdate.

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