Employers are responsible for verifying their employee’s identity and eligibility to work in the United States. You must complete an I-9 form for your employees and should take other precautions to protect yourself from the negative consequences of immigration non-compliance. At Poarch Thompson Law, our experienced immigration attorneys can help you understand your obligations and fulfill them, reducing your liability. Here are the basics of employer immigration compliance and answers to the most common questions.
An Increase in Employer Immigration Compliance Audits
We have seen a dramatic increase in the frequency of employer immigration compliance audits. The Trump Administration is seeking to create a “culture of compliance” among those who employ immigrants. This change of policy is intended to discourage illegal immigrants since few people would choose to enter a country where they know they will not be able to find work.
As being audited is now likely, it is more important than ever to be sure your organization follows immigration law and hires an experienced immigration attorney.
The I-9 Form
The I-9, or the employment eligibility verification form, is the foundation of your immigration responsibility. You must have an I-9 form on hand for every employee. You must fill out the form within three days of hiring the employee. On the form, you are required you to indicate the immigration status of the employee. They may be a U.S. citizen, permanent resident, or on a visa that allows them to have work authorization in the United States.
What happens if I fail to comply with the Law?
If you cannot produce an I-9 form for your employees, you can be charged a fine of up to $4,313 per illegal employee. If this is the second time you have been penalized, the fine increases to a maximum of $10,781. For a third and further time, you may face fines of $21,563 per employee.
Remember, these fines only apply if the government can prove you knowingly hired the illegal employee. If you follow our best practices listed below, you likely won’t be fined if you make an honest mistake.
Does everyone I hire need to prove that they are legally eligible to work in the U.S.?
Yes, all employees must prove they can legally work in the United States. They may present you with a current passport, permanent resident card, employment authorization card, or a few other documents along with proof of identity. Be sure these documents are not expired.
How can an employer make sure the document(s) an employee presents are authentic?
The verification process is straightforward. Inspect the documents. Be sure that they are not expired, that they reasonably seem authentic, and relate to the person who presented them. Do not accept photocopies.
You may but are not required to use the E-Verify system to verify employment eligibility online.
What if the employee and government provided information doesn’t match up?
If you find that a record the employee provided doesn’t match government provided information, you may not fire, suspend, or otherwise take action against this employee. Instead, you have to give them the opportunity to correct it. At this juncture, it’s important to speak with an immigration attorney experienced with employer compliance to ensure you are following the best protocol after recurring a “no match” letter.
Best practices employers can use to protect themselves
As long as you do your due diligence to abide by the law, you will avoid sanction. Here are the best practices we recommend you follow:
- I-9: Complete the I-9 accurately and on time. Keep multiple copies of it and be sure that it is secured if stored digitally.
- Legal representation: Unusual circumstances will arise. Be sure you have attorneys who are experienced with immigration law who can advise you.
- Verification process: When verifying employees, discuss their immigration status in a private room or off-site. It is your responsibility to keep your employee’s information private. Also, be sure you follow up on anything suspicious.
- Self-Audits: Especially in mid-sized to large organizations, self-audits can help you ensure that your staff is all following procedure and that you are protecting yourself from liability.
- E-Verify: It is optional. Being proactive is always best to protect yourself.
- Contractors: If you use contractors or subcontractors, you may still be liable for their employer immigration compliance. Follow up with them, and find out what their compliance policies are.
Storing I-9 forms electronically
If you are going to store I-9 forms electronically, you need to take reasonable safeguards to protect them. Ensure that they are accurate and unlikely to be deleted or lost. Be sure you can print them off in hard copy and that they can be searched.
Discrimination and exceptions to discrimination laws
It is often confusing to tell the difference between discriminating against someone’s immigration status and following the law to prevent employing an illegal immigrant. There are laws against discrimination on the basis of national origin. It’s best to strive to treat all employees equally and to retain legal counsel to help guide you.
What you can do if a prospective hire doesn’t have work authorization
Many aliens seek employment in the U.S. in the hopes an employer will sponsor them so that they can work here. If someone has been honest with you that they don’t currently have work authorization, you may be able to sponsor them. It is important you seek good advice from competent immigration attorneys.
How Poarch Thompson Law can help?
Employer immigration compliance is quite complex, and violations carry high penalties. Guidance from the experienced immigration attorneys at Poarch Thompson Law can help you limit your liability and follow the law. We can help you develop a written policy for dealing with work authorization that will guide you or offer advice for unusual circumstances. Reach out to us today.