Immigration Laws for Employers

Whether you know it or not, as a U.S. employer you serve as an agent for the Immigration and Naturalization Service (INS). Federal lawmakers cracked down on the hiring of undocumented immigrants and came up with the I-9 verification process, which requires employers to confirm the employment eligibility of workers. Government investigators use these I-9 forms to check if employers are using undocumented workers.

The I-9 forms also provide employers with a "good faith" defense if they hire someone who later turns out to be working illegally in the United States.

But these laws also help prevent discrimination against workers who may appear or sound "foreign."

The Basics

I-9 forms can be obtained from the INS (800-870-3676), or downloaded from the agency's Web site. You can also write to the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

Complaints about employing illegal workers may prompt an investigation from the Department of Labor or the INS. An employer can be fined and otherwise sanctioned for knowingly hiring an undocumented worker or unknowingly hiring an undocumented worker if a reasonable person would believe the employee was illegally employed.

Every employer must complete I-9 forms, even if there's just one employee. Companies employing independent contractors aren't responsible for completing the I-9 forms for those workers.

If someone provides information and documents that, on their face, appear valid and consistent, you don't need to investigate further. An employer should probe the applicant further only if the documents are obvious forgeries, the information doesn't match the employee, the INS tells you the individual hasn't properly completed an employment eligibility procedure, or you have other solid information, not rumors, that makes you think you should ask more questions.

It's a good idea to have an audit of your I-9s to be sure they comply with the law.

Here are some do's and don'ts when going through the I-9 verification process.

First, the do's:

• During an employee's first day, give him or her a list of documents that can be used to verify status.
• Tell the employee that receipts showing an application for documents is fine if he/she already has employment authorization.
• It's okay to ask questions about name changes.
• Make sure the documents the employee provides are on the lists of acceptable documents.
• Review documents for authenticity. Look for any obvious signs of tampering or forgery. Reject a document only if it's an obvious fake. If it looks valid on its face and is listed as a qualified document on the I-9, go ahead and accept it.
• Keep I-9s for three years, or one year after employment ends, whichever is longer.
• I-9 forms are subject to inspection by the INS on three days' notice, without even a warrant or subpoena.

Of course there are some big don'ts when it comes to the I-9 verification process. Employers must avoid discriminating against the employee because of citizenship status or national origin through "document abuse," asking the employee for more documents than necessary or different documents to prove employment eligibility.

• Don't tell the employee which documents to present.
• Don't tell the employee that the employer prefers a certain document or documents.
• Don't reject a document unless it's an obvious forgery or shows signs of tampering. You're not required to be an expert on fraudulent documents.
• Don't reject a document simply because it differs from what's in the INS Handbook.
• Don't accept photocopies of any qualifying documents, or laminated social security cards.
• Don't consider the expiration of an individual's eligibility date, no matter how close that date is to the hiring date.

Getting Help

To avoid problems with employing foreign workers, consult an attorney who can train your human resource personnel about proper procedures. Training seminars may be available.

Audit I-9 records and correct any errors. You may want to consult an attorney.

If you are inspected:

• Don't consent to an immediate inspection if INS agents show up without notice; you have up to three days to respond. Call your attorney immediately.
• Don't let INS agents take original records; provide copies.
• Don't allow INS officers to talk with employees before you call your attorney.
• If Department of Labor agents show up for an inspection without notice, decline the inspection. They'll notify the INS.
• If INS discovers technical errors on I-9s, you have 10 days to correct them.

Only a few specialists who deal with business immigration will be savvy about employer compliance issues. Firms dealing with immigration and lawyers practicing employment and labor law can best handle compliance issues and any litigation arising from an inspection.

For any complaints of discrimination, consult an employment law attorney.

Lawyers.com has a free service called, "Find a Lawyer" that can help you to find a lawyer in any city and state in the United States. Because immigration law is federal, the attorney doesn't have to be local.

What's Next?

The Department of Labor investigates employment compliance through the Wage and Hour Division and the Office of Federal Contract Compliance Program. They also inspect I-9 verification files. The Department of Labor doesn't have authority to issue a Notice of Intent to Fine (NIF), but it reports to INS. More than 700 INS agents are out there inspecting employers, along with more than 1,500 Department of Labor inspectors.

Doing the paperwork correctly to start with helps everyone.

Yvette Sebelist is an attorney with King & Ballow in Nashville, Tenn. She practices exclusively in immigration law, and lectures and writes frequently on immigration law for businesses.

Web link:

Immigration and Naturalization Service

Immigration Message Board for more help