Are you required to investigate the immigration status of your employees?
Mary Jane Wagg
The short answer is: Yes, but only to a point.
Under federal law, you must not knowingly hire, recruit, or continue to employ an unauthorized alien-either as a regular employee or as an independent contractor. The office of Immigration and Customs Enforcement, an investigative arm of the Department of Homeland Security (formerly the Immigration and Naturalization Service), is authorized to issue fines to employers of up to $11,000 per unauthorized alien, per offense. However, the key word is "knowingly," and even the most diligent employers might not discover-and accordingly, should not be held responsible for-its employees' secrets.
During the interviewing and hiring process, an employer is not required to investigate a candidate's background. However, once an employee has been hired, you are responsible for verifying the individual's employment eligibility and identity by having him or her complete a Employment Eligibility Verification Form I-9. A Form I-9 must be completed for all employees.
Form I-9 has three sections. The first section contains an employee's own attestation that he or she is authorized to work in the United States. Although an employer may be held liable for a deficiency in section one, it cannot be held liable for the accuracy of the information an employee provides. Thus, while you must ensure that your employees provide all the information requested in part one (except for Social Security number, which is optional), you are not responsible for confirming that information is correct, and you may not require employees to produce documents to verify section one information. However, if
an employee refuses to complete section one, you should not continue to employ that individual.
Section two requires an employer or its authorized representative to personally review original documents that demonstrate an employee's identity and eligibility to work in the U.S., such as a passport, driver's license or state-issued ID card, birth certificate, etc. A list of acceptable documents is included in Form I-9. As an employer, you are not expected to vouch for the authenticity of a document, and you will not be held responsible if your employee submits a forged document (unless it is an obvious forgery). As long as the document reasonably appears to be genuine and relates to the individual presenting it, is presumptive proof of residency and employment status. Of course, if you have reason to believe an individual is not authorized to work in the U.S., a completed Form I-9 may not exonerate you. If you receive a document that does not appear to be genuine, you may request assistance from the Office of Business Liaison of the United States Citizenship and Immigration Services - Toll free (800) 357-2099 or online at www.uscis.gov. If you suspect fraud, you may report it to a local U.S. Immigration and Customs Enforcement office.
Section three of Form I-9 requires employers to update and reverify information from time to time.
Unlike tax forms, which must be filed with the government, a Form I-9 for each of your employees must be kept on file as part of your records. An I-9 must be retained for each employee for a period of three years after the date of hire, or one year after employment is terminated, whichever is longer. Because the government is only required to provide three days' notice for an official inspection of records, it is recommended that you keep I-9 files on site or in a similarly accessible location. Electronic storage is permitted by statute.
Generally speaking, you may not go above and beyond the requirements of Form I-9 when hiring or investigating new employees. Unless you are an official registered participant in one of the Department of Homeland Security's automated verification system pilot projects, you may not contact the government to confirm the employee's work authorization status. Nor may you use the I-9 process to pre-screen applicants, or as a pretense for discriminatory action. Discrimination against qualified individuals on the basis of race or national origin is illegal under Utah law as well as U.S. law. And although Utah's administrative code may permit employers to request proof of citizenship prior to hiring, requesting more or different documentation than the minimum necessary to meet the requirements of Form I-9 may constitute an unfair immigration-related employment practice under federal law.
Under federal law, you must not knowingly hire, recruit, or continue to employ an unauthorized alien-either as a regular employee or as an independent contractor. The office of Immigration and Customs Enforcement, an investigative arm of the Department of Homeland Security (formerly the Immigration and Naturalization Service), is authorized to issue fines to employers of up to $11,000 per unauthorized alien, per offense. However, the key word is "knowingly," and even the most diligent employers might not discover-and accordingly, should not be held responsible for-its employees' secrets.
During the interviewing and hiring process, an employer is not required to investigate a candidate's background. However, once an employee has been hired, you are responsible for verifying the individual's employment eligibility and identity by having him or her complete a Employment Eligibility Verification Form I-9. A Form I-9 must be completed for all employees.
Form I-9 has three sections. The first section contains an employee's own attestation that he or she is authorized to work in the United States. Although an employer may be held liable for a deficiency in section one, it cannot be held liable for the accuracy of the information an employee provides. Thus, while you must ensure that your employees provide all the information requested in part one (except for Social Security number, which is optional), you are not responsible for confirming that information is correct, and you may not require employees to produce documents to verify section one information. However, if
an employee refuses to complete section one, you should not continue to employ that individual.
Section two requires an employer or its authorized representative to personally review original documents that demonstrate an employee's identity and eligibility to work in the U.S., such as a passport, driver's license or state-issued ID card, birth certificate, etc. A list of acceptable documents is included in Form I-9. As an employer, you are not expected to vouch for the authenticity of a document, and you will not be held responsible if your employee submits a forged document (unless it is an obvious forgery). As long as the document reasonably appears to be genuine and relates to the individual presenting it, is presumptive proof of residency and employment status. Of course, if you have reason to believe an individual is not authorized to work in the U.S., a completed Form I-9 may not exonerate you. If you receive a document that does not appear to be genuine, you may request assistance from the Office of Business Liaison of the United States Citizenship and Immigration Services - Toll free (800) 357-2099 or online at www.uscis.gov. If you suspect fraud, you may report it to a local U.S. Immigration and Customs Enforcement office.
Section three of Form I-9 requires employers to update and reverify information from time to time.
Unlike tax forms, which must be filed with the government, a Form I-9 for each of your employees must be kept on file as part of your records. An I-9 must be retained for each employee for a period of three years after the date of hire, or one year after employment is terminated, whichever is longer. Because the government is only required to provide three days' notice for an official inspection of records, it is recommended that you keep I-9 files on site or in a similarly accessible location. Electronic storage is permitted by statute.
Generally speaking, you may not go above and beyond the requirements of Form I-9 when hiring or investigating new employees. Unless you are an official registered participant in one of the Department of Homeland Security's automated verification system pilot projects, you may not contact the government to confirm the employee's work authorization status. Nor may you use the I-9 process to pre-screen applicants, or as a pretense for discriminatory action. Discrimination against qualified individuals on the basis of race or national origin is illegal under Utah law as well as U.S. law. And although Utah's administrative code may permit employers to request proof of citizenship prior to hiring, requesting more or different documentation than the minimum necessary to meet the requirements of Form I-9 may constitute an unfair immigration-related employment practice under federal law.
Copyright 2007. Published for general informational purposes only, and should not be construed as legal advice. If you need legal advice please consult with your attorney.