Immigration employment law does not only relate to bringing workers into the United States. It also covers the rules and regulations that employers who employ individuals who are not US citizens must comply with in their human resources policies and procedures. A Lombard employment immigration attorney can keep your company in compliance with these rules.
The Immigration Reform and Control Act (IRCA), passed in 1986, requires employers to ensure that all of their employees are legally authorized to live and work in the US. IRCA also made it illegal for employers to knowingly hire or recruit immigrants not legally authorized to live and work in this county.
Employers are subject to enforcement regarding their compliance with IRCA. They now undergo previously unknown levels of examination and scrutiny at all stages of the hiring and employment process.
The Immigration and Naturalization Service is responsible for implementing and enforcing IRCA. The public policy underlying IRCA concerns the issue of undocumented immigration and employment and requires robust enforcement mechanisms.
All employers are, in compliance with IRCA, required to verify both the identity and employment eligibility of all employees. This requirement includes regular, temporary, agency personnel, and student employees. Employers must require that all such employers must complete and the employer retain a one-page form (Form I-9) documenting and recording this verification.
Form I-9 verification must begin on the day employment begins. Employees must submit the complete form and the supporting documents within three days. If they do not, the employer must remove the employee from the payroll. Since 2006, employers can handle this process electronically.
Form I-9 lists the acceptable documents for verifying identity and employment eligibility in its instructions. Some documents, such as a US passport or a green card, can prove identity and work eligibility. Other documents prove either identity or eligibility to work. Employers may not state that only certain documents are acceptable.
Sometimes an employee is eligible to work in the United States but does not have the appropriate documentation. In that case, an immigration lawyer can provide a legal memorandum documenting the employee’s eligibility. While not binding, such a memo usually shields the employer from liability.
Rehires within three years do not need to complete a new Form I-9. I-9 completion is not required of applicants, and employers may not selectively require that applicants complete the Form. Independent contractors are also exempt from Form I-9. Finally, completing a new Form I-9 after completion of leave, a lay-off, strike or labor dispute, or gaps between seasonal employment is not necessary.
Failure to comply with these provisions can result in both civil and criminal liability. Fines can range from $100 to $1,000 per hire, in addition to possible imprisonment upon a showing of a pattern or practice of noncompliance. Further, failure to verify the identity and employment eligibility of any employee will, if discovered, result in the immediate termination of that employee.
Although the Form I-9 requirement may seem simple, employment eligibility and identity verification can be minefields for a careless employee. If you believe that your company may have a potential I-9 problem or if you want help building a robust verification program, contact us or call 312-427-6163 for assistance in building your program.