It is very important for an employer to have a system in place when it comes to hiring new employees. There are a number of federal and state laws that employers must follow when hiring employees. Generally speaking, these laws prohibit discrimination in employment decisions based on race, religion, sex, age, national origin, disability, or veteran status.
There are also requirements that employers verify employment authorization, identity of new employees and anti-discrimination responsibilities under immigration laws.
In 1986, Congress reformed the US immigration laws seeking to close the door to illegal entry. The law sanctions employers for not verifying the identity and employment authorization of each person the employer hires. To comply with the law an employer must complete and retain a Form I-9 for each employee and refrain from discriminating against individuals on the basis of national origin or citizenship.
Form I-9 helps employers to verify individuals who are authorized to work in the US. It is essential that a Form I-9 is completed for every new employee you hire who performs labor or services in the US in return for wages.
The employer needs to ensure that the employee fully completes Section 1 of the form and review the documents provided for Section 2 and fully complete section 2 of the form within 3 business days of the first day of work. If the employee is working less than 3 business days, then Form I-9 must be fully completed when the employee begins work. The employer is responsible for reviewing and ensuring that the employee fully and properly completes section 1.
The employee must present original documents that establish identity and employment authorization. Documents that are on List A establish both identity and employment authorization. Documents that are on list B establish identity only, and documents that are listed on List C establish employment authorization only.
The employer must examine one document from List A or examine one document from List B and one document from List C. If the documents appear on their face to be genuine and relates to the person presenting them, then the employer must accept them.
The employer MUST accept any documents from List A, B and/or C. The employer may not specify which documents an employee must present. The employer may choose to copy or scan documents presented by an employee, which would then need to be retained with the employee’s Form I-9. But the employee would have to retain copies of employee documentation for all employees uniformly. An employer must retain completed forms I-9 for all employees for 3 years after the date they hire an employee or 1 year after the date employment is terminated, whichever is later.
If an employer acquires a business and its employees, the employer may choose to keep the previous owner’s completed I-9’s for each acquired employee but that employer would then be responsible for any errors or omissions in the I-9’s. So to avoid this liability, the employer may choose to complete a new Form I-9 for each acquired employee. But this must be done for all acquired employees without regard to actual or perceived citizenship status or national origin.
An employer does not need to complete a Form I-9 for persons who are employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis; independent contractors; or if the employee is not physically working on U.S. soil.
With regard to employment discrimination prohibited under immigration laws an employer is prohibited from requesting that employees produce more documents than are required by Form I-9; prohibited from requesting that employees present a particular document such as a driver’s license and social security card; prohibited from rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and prohibited from treating groups of applicants differently when completing Form I-9, all employees should be treated the same.
To avoid discrimination an employer should treat employees equally when recruiting and hiring and when verifying employment authorization and identity. An employer should not request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds foreign or because someone states that he or she is not a U.S. citizen; refuse to accept a document or refuse to hire an individual because a document has a future expiration date; or limit jobs to U.S. citizens unless allowed by law.
There are civil penalties for unlawful employment practices. The Department of Homeland Security may impose penalties if an investigation reveals that you knowingly hired or knowingly continued to employ an unauthorized alien or failed to comply with the employment eligibility verification requirements.
If you receive a Notice of Intent to Fine you may request a hearing before an administrative law judge. But if your request for a hearing is not received within 30 days, Department of Homeland Security will impose the penalty ad issue a Final Order, which cannot be appealed.
Depending upon what type of prohibited practice the employer conducted, the fines can range from $110 to $16,000 for each violation. An employer may also face imprisonment if knowingly engages in a pattern or practice off hiring or continuing to employ unauthorized aliens or if engages in fraud or false statements or otherwise misusing visas, immigration permits and identity documents.
Therefore, it is important that you, as an employer have a set of procedures in place when hiring employees and use the same procedures for all employees and complete Form I-9 for all employees.