Employer Immigration Requirements
The main statute governing a company’s obligations under federal immigration law is the Immigration Reform and Control Act of 1986 (“IRCA”). Provisions of the Act require every employer to verify the identity and work authorization status of every employee through completion of an I-9 form. The I-9 process must begin on the day of hire or earlier and be completed within three days of hire. Employees must provide basic biographical information and a certification that he or she is a citizen, permanent resident or authorized to work under another status. Employees may present separate documents showing identity and work authorization, or a single document such as a passport that fulfills both purposes. Employees may choose the documents they will rely on from a pre-approved list sanctioned by the government. Employers may not require an employee to present a particular document, so long as ones from the list are presented.
Employers must then verify that documents were presented by the employee to prove their identity and work status, and that the paperwork was completed in a timely fashion. Any employee who fails to complete the I-9 process within three days of hire must be removed from the payroll, but can be suspended as opposed to terminated until the process is completed. Former employees rehired within three years of completing the initial I-9 forms need not complete a new form. Further, while independent contractors are not required to complete I-9 forms, any employer contracting with third parties it knows employs unauthorized workers can be held liable under IRCA.
Employers must retain I-9 forms for all current employees. Forms for terminated employees must be kept for at least three years from the date of hire, or for at least one year after the date of termination, whichever is later. Retaining copies of the supporting documents is voluntary, but any policy adopted should be followed on a consistent basis.
In the event of a merger or acquisition, the purchaser need not recertify the I-9 information, provided it assumes all the assets and liabilities of the acquired company. Steps, however, should be taken during the due diligence process to make sure the I-9 files have been kept properly.
Hiring unauthorized workers may result in fines from $250 to $5,500 per worker depending on an employer’s past violation history. Employers can also be banned from competing for government contracts for a year if they knowingly hire or retain an unauthorized alien. Paperwork violations can also result in fines of up to $1,000 for mistakes or missing information. A missing form will result in an automatic $1,000 fine. Finally, knowingly accepting fraudulent documents from an employee can result in criminal prosecution under other immigration laws.
