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Complying With Immigration Law In Hiring

Originally published: 05.01.07 by Mike Coyne

How to protect your business, and yourself, from criminal prosecution.

During the last few years, the problem of illegal immigration has been in the news almost daily. While most stories focus on the problems caused by illegal immigrants, there have been more than a few about employers who have been fined or even imprisoned for hiring illegal aliens. One of our clients who employs a large number of Hispanic workers recently called wanting to know how to protect his business and himself from criminal prosecution. He was surprised to learn, as you may be, that your obligations under the immigration laws are relatively straightforward. Unless an employer is engaged in a pattern of knowingly hiring illegal immigrants, criminal prosecution is unlikely.

The safest way to avoid problems under the immigration laws is to understand your responsibilities as an employer. Your principal responsibility is to verify the employment eligibility and identity of all employees that you hire. This must be done within three business days of the date the employee begins work.

Verification is done by having the employee complete Section 1 of Form I-9, and by the employer completing Section 2. Section 2 of Form I-9 requires the employer to review certain

documentation presented by the employee and to record document information on the Form.

Form I-9 describes three types of documents that can be provided by the employee. The employer may accept a document from List A, such as a passport, which is sufficient to establish an employee’s identity and work eligibility. Alternatively, the employer can accept a document from List B, such as a driver’s license, to establish the employee’s identity and a document from List C, such as a Social Security card, to establish the employee’s work eligibility. The employer must examine the documents and is required to accept them so long as they reasonably appear to be genuine and relate to the employee who presents them.

An employer is not required to be a document expert. If the documents reasonably appear to be genuine, they should be accepted. As an employer, you have no right to request additional documentation and doing so may be considered an unfair immigration-related employment practice.

The requirement to have a Form I-9 completed applies only to persons you actually hire. You do not need to obtain completed forms from potential employees or independent contractors.

Once Form I-9 is complete, your job is pretty much done. However, you are required to retain the Form I-9 for three years after the date the employee begins work, or one year after the employee’s employment is terminated, whichever is later.

For employers that are particularly concerned about complying with the law, the Department of Homeland Security-U.S. Citizenship and Immigration Service has established a pilot program that allows employers to receive verification of employment eligibility through use of its electronic database. While use of the pilot program is free, employers must register to use the program and must agree to use the program to verify employment eligibility of all future employees. Additionally, the employer must have a designated employee complete online training before beginning use of the pilot program. It should be noted that this is not an alternative to completing the Form I-9, but is instead a supplementary procedure.

Every employer should obtain a copy of Publication M-274, Handbook for Employers, Instructions for Completing Form I-9 (Employment Eligibility Verification Form). It can be downloaded from www.uscis.gov/files/nativedocuments/ m-274.pdf or at www.hvacrbusiness.com/downloadcenter.com.

Michael P. Coyne is a founding partner of the law firm Waldheger Coyne, located in Cleveland, OH. For more information of the firm, visit: www.healthlaw.com or call 440.835.0600.

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