Employment Eligibility Laws for Foreign Nationals and U.S. Employers
The process of complying with immigration laws can sometimes be confusing for employers, and the penalties for failing to comply with legal regulations can be severe. Employers should consult an experienced immigration attorney in their area to ensure they are completing Form I-9s and using the E-Verify system accurately.
Since 1986, all employers in the United States are required to fill out Form I-9. The purpose of the form is to verify the identities as well as the work authorizations for all new employees. Employers are obligated to ensure that the form is completed properly. The form is to be used for both U.S. citizens and non-U.S. citizens. An employee must attest to his or her employment authorization on the form. The employee is also required to present legally acceptable documentation proving his or her identity and employment authorization. The employer should examine these documents carefully to assess whether they appear to be genuine or not. The I-9 should be completed within three business days of the employee starting work.
Employers must have a completed I-9 for each individual on their payroll who is required to fill out the form. The form must be kept and stored by employers either for three years after the date of hire or for one year after employment is over, whichever is later.
Employers can be subject to penalties if:
- They fail to complete and retain Form I-9;
- They knowingly hire, continue to employ, or contract for the services of an unauthorized worker;
- They provide or knowingly accept false employment eligibility documents; or
- They have a pattern of I-9 compliance violations.
E-Verify is an internet-based process through which information from an employee’s Employment Eligibility Verification Form I-9 is compared to data from U.S. government records. If the information matches, the employee is permitted to work in the U.S. However, if the information does not match, E-Verify will notify the employer, which must address the problem. Many employers are required to use E-Verify, including federal contractors and subcontractors. Some states have passed legislation requiring employers to assess a new hire’s employment eligibility through the E-Verify system.
The E-Verify system is operated by the United States Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). The program is designed to help employers avoid legal penalties for hiring unauthorized workers.
It is important to note that the I-9 does not require a Social Security Number (SSN), whereas an SSN is required for E-Verify. The I-9 does not require a photo identity document, whereas E-Verify does require a photo identity document.
In an effort to enforce employment eligibility laws, Immigration and Customs Enforcement (ICE) has increased the number of audits that it has conducted over the past few years. The most important step an employer can take to protect itself from potential fines and criminal charges is to identify and resolve errors in I-9 forms as early as possible. Incorrect information or omissions can both be the basis of liability for an employer. Thus, complete and correct I-9 forms are extremely important to stay in compliance with immigration laws.
