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Congress seems to be stuck in the process of passing much-needed immigration law reform. But employers must still comply with existing law — an obligation that can get sticky.
I ran across an article that briefly summarizes employers’ obligations — and dilemmas.
The basic obligations are:
- Employers must complete an I-9 employment eligibility verification form for all new hires, and keep it on file for 3 years after the date of hire or 1 year after the date employment is terminated, whichever is later.
- Employers must be reasonably sure the person is authorized to work in the United States, but are not expected to be able to detect fraudulent documents.
- According to the immigration service, “an employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it.”
- Unless the employer receives a notice from the Social Security Administration that a social security number and name don’t match, they don’t need to probe the documents further.
- If a no-match letter arrives, the employer is required to resolve the discrepancy. If the employee turns out to be illegal, the employer must fire them.
It is important for employers not to “probe employees on nothing more than suspicions.” Doing so could lead to a discrimination lawsuit if the individual is in fact authorized to work, and is treated differently than other applicants or new hires because of foreign appearance or accent, national origin, or citizenship status.
Help is on the way:
Congress has mandated a test employment verification program, the Basic Pilot Program, which is currently voluntary and free to companies in all 50 states.
As of June 21, slightly more than 9,340 companies representing 34,680 sites were using the program, which is growing by about 200 new companies per month. Figures about local use were not available.
The pilot program allows employers to use an automated system to verify the employment authorization of all newly hired employees and cannot be used to verify selectively. That is where it avoids the discrimination trap.
Dayton Business Journal: “Immigration law tricky for employers to follow”
For extensive and ongoing immigration-reform coverage, check out the Washiongton Post’s page: “The Battle Over Immigration,” with links to many articles.
For information straight from the horse’s mouth, visit the U.S. Citizenship and Immigration Services website, where you can find information on the I-9, and peruse extensive immigration law FAQs.
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