What Do Managers Need to Know about Immigration and I-9 Laws?

1. Robin Soderblom BA638 Bellevue University October 7, 2013 What Do Managers Need to Know about Immigration and I-9 Laws?

2. The Immigration and Nationality Act (INA) • “Is administered by the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration (ETA). The INA includes provisions addressing: • employment eligibility, employment verification, and nondiscrimination. These provisions apply to all employers • Under the INA, employers may hire only persons who may legally work in the United States (i.e., citizens and nationals of the U.S.) and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification Form (I-9 • The INA protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status.”

3. I-9 Employee Information & Verification • When completing the I-9, as a manager you must provide to the employee the complete instructions to the form and the List of Acceptable Documents. Your newly hired employee must complete and sign Section 1 of Form I-9 no later than their first day of employment. 

4. What Employees Will See on Section 1 of the I-9 Form • Employees must provide their: • Full legal name • If the employee has two last names (family names), include both. If the employee has two first names (given names), include both. • If the employee hyphenates his or her first or last names, include the hyphen (-) between the names. • Include his or her middle initial if the employee has a middle name. • Other names used, if applicable (e.g., maiden name) • Current address, including street name and number (no P.O. Box), city, state and ZIP code • Date of birth  • Check mark next to the appropriate box to indicate whether they are a U.S. citizen or national, lawful permanent resident of the United States, or an alien authorized to work in the United States. • Alien Registration/USCIS or Form I-94 Admission number and the date employment authorization expires  (if applicable) • Signature and date • Additionally, employees may provide their: • Social Security number (This is optional unless the employer uses E-Verify and the individual has been issued a number.) • Telephone Number • E-mail Address

5. Managers Responsibility for Section 1 of the I-9 • Review the information your employee provided in Section 1. • Ensure that your employee provided information in all required fields. • (Note: Your employees are not required to provide a Social Security number in Section 1. However, a Social Security number may be required if you use E-Verify.) • Ensure your employee signed and dated the form. • Ensure the Preparer/Translator section has been completed, signed, and dated if your employee used a preparer/translator. • In addition:  • You should note whether your employees indicated in Section 1 that their employment authorization will expire. • You may need to re-verify your employee’s authorization when his or her employment authorization expires. You may want to remind your employees, at least 90 days before their employment authorization expires and that they will need to present a List A or List C document to show continued employment authorization for re-verification purposes. Employees must present these documents on or before the date their current employment authorization expires.

6. Acceptable Documents List A: Passport or Permanent Resident Card or Alien Registration Receipt Card List B: Driver’s license or identification (ID) card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address List C: * U.S. Social Security account number card that is unrestricted.  A card that includes any of the following restrictive wording is not an acceptable List C document: • NOT VALID FOR EMPLOYMENT • VALID FOR WORK ONLY WITH INS AUTHORIZATION • VALID FOR WORK ONLY WITH DHS AUTHORIZATION * Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545) * Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350) * Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal * Native American tribal document * U.S. Citizen ID Card (Form I-197) * Identification Card for Use of Resident Citizen in the United States (Form I-179) * Employment authorization document issued by DHS

7. E-Verify • U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment. • E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use – and it’s the best way employers can ensure a legal workforce.

8. Employee Rights • Employers must treat employees in a non-discriminatory manner when recruiting, hiring, firing, and verifying their identity and authorization to work on Form I-9 • The employer MAY NOT:  • Demand that you show specific documents because of your national origin, ethnicity, immigration or citizenship status, race, color, religion, age, gender or disability, or because of any other protected characteristic. For example, your employer may not: • Request that you show a document issued by the Department of Homeland Security because you are not a U.S. citizen. • Require US Passports from new employees who “sound foreign” and claim U.S. citizenship • Refuse to accept your document or refuse to hire you because of an unfounded suspicion that your document is fraudulent. For example, your employer may not refuse to accept your U.S. passport because you have limited English proficiency.   • Treat you differently than other applicants because you are, or your employer believes that you are, a U.S. citizen or noncitizen.  • Ask to see your employment authorization documents before he or she hires you or before you complete Form I-9 • Refuse to accept your document or refuse to hire you because your document expires in the future • Limit jobs to U.S. citizens unless U.S. citizenship is required by law or government contract • Demand a specific document

9. An Employer: • Must provide the employee with the complete Form I-9, including instructions for completing the form • Must accept employee documentation if it reasonably appears to be genuine and to relate to you • Must allow the employee the choice of what documentation to provide. In other words, your employer cannot demand that you provide a U.S. passport or “green card.” • Must reject any document that does not reasonably appear to be genuine or to relate to you. • MUST NOT, under the Immigration and Nationality Act’s anti-discrimination provision, retaliate against the employee for: • Contacting the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, or the Equal Opportunity Commission for assistance or to file a complaint. • Complaining about discrimination or otherwise asserting your or another’s rights. • Participating in an investigation or lawsuit on behalf of an alleged victim • Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States

10. Retaining I-9 forms • Employers must have a completed I-9, on file for each person on their payroll who is required to complete the form. Employers must also keep completed Forms I-9 for a certain amount of time after their employees stop working for them. • Once an employee no longer works for the employer, the employer must determine how much longer to keep the employee’s Form I-9 a formula for determining this time period may be located at www.uscis.gov however, the “general rule” is that employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer

11. Penalties • Employers who violate the law may be subject to: • civil fines • criminal penalties (when there is a pattern or practice of violations) • debarment from government contracts • a court order requiring the payment of back pay to the individual discriminated against • a court order requiring the employer to hire the individual discriminated against

12. Assistance for Managers • Employment and Training Administration, Office of Foreign Labor Certification • E-mail: ETApagemaster@dol.govTel: 1-877-US2JOBS (1-877-872-5627)

13. References: • www.dol.gov • http://www.uscis.gov