Verifying Employment Eligibility
Why Employers Must Verify Employment Eligibility of New Employees
Employment is often the magnet that attracts persons to come to or stay in the United States illegally. One purpose of the Immigration Reform and Control Act is to remove this magnet by requiring employers to hire only persons who may legally work here: citizens and nationals of the United States and aliens authorized to work. To comply with the law, you must verify the identity and employment eligibility of anyone you hire, and complete and retain a Form I-9.
In addition, the law obliges employers not to discriminate against individuals on the basis of national origin or citizenship, or to require more or different documents from a particular individuals.
Administrative Guidelines
The Immigration Reform and Control Act was enacted in 1986. Further provisions issued in 1990 updated the act.
The law requires employers to:
· Ensure that employees fill out section 1 of the form I-9 when they start to work.
· Review document(s) establishing each employee's identity and eligibility to work.
· Properly complete section 2 of the form I-9.
· Retain the form I-9 for three years after the date the person begins to work or one year after the person's employment is terminated, whichever is later.
· Make the form I-9 available for inspection by officers of designated federal agencies.
Employees who were hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times are not required to have the I-9 form completed. Additionally, persons employed in casual domestic work, independent contractors, or persons who are leased employees are not required to have the I-9 form completed.
Anti-Discrimination Provisions
For the purpose of satisfying the employment eligibility verification requirements, an employer cannot request that an employee present more or different documents than are required. Also, an employer cannot refuse to honor documents which on their face reasonably appear to be genuine and to relate to the person presenting them. The law makes these actions unfair immigration-related employment practices.
Document Fraud Provisions
Under the law, it is unlawful for anyone knowingly to engage in any of the following activities for the purpose of satisfying a requirement of the Act:
· To forge, counterfeit, alter, or falsely make any document;
· To use, attempt to use, possess, obtain, accept, or receive any forged, counterfeit, altered, or falsely made document;
· To use or attempt to use any document lawfully issued to a person other than the possessor (including a deceased individual); or
· To accept or receive any document lawfully issued to a person other than the possessor (including a deceased individual) for the purpose of complying with the employment eligibility verification requirements.
When You Must Complete the Form I-9
Every time you hire any person to perform labor or services in return for wages or other remuneration, you must complete the Form I-9. This requirement applies to everyone hired after November 6, 1986.
Ensure that the employee fully completes Section 1 of the form at the time of the hire – when the employee begins work.
Review the employee's document(s) and fully complete Section 2 of the form within 3 business days of the hire.
If you hire a person for less than 3 business days, Sections 1 and 2 of the Form I-9 must be fully completed at the time of the hire – when the employee begins work.
You DO NOT need to complete a Form I-9 for:
· Persons hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times;
· Persons who are independent contractors; or
· Persons who provide labor to you who are employed by a contractor providing contract services (e.g., employee leasing).
NOTE: You cannot contract for the labor of an alien if you know the alien is not authorized to work in the United States.
SESCO Management Consultants is available for assistance should you have questions about this issue. You may contact us by phone at 423-764-4127 or by email at sesco@sescomgt.com .