Sunday, September 20, 2009

Immigration Law For Employers

If you own your own business or otherwise have employees, you are, under federal law, an agent for the Department of Homeland Security (DHS) (previously the Immigration and Naturalization Service (INS). In an effort to reduce the hiring of undocumented immigrants, Congress created the I-9 verification process, which requires employers to confirm the employment eligibility of workers. DHS investigators use these I-9 forms to determine whether employers are hiring undocumented workers.

I-9 forms are actually a positive thing for employers, because I-9 forms provide employers with a "good faith" defense if the employer hires a worker who is actually working illegally in the United States.

Employers can obtain I-9 forms from the DHS (800-870-3676), or download them from the agency's Web site. You can also write to the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

DHS can start an investigation about a company employing illegal workers at any time. An employer can be fined and sanctioned for hiring an undocumented worker. The standard in judging the wrongfulness of the employer's conduct is whether a reasonable person would believe the employee was illegally employed.

Every employer must complete I-9 forms, even if the employer has just one employee. Hiring independent contractors does not trigger the requirement to complete an I-9 form.

If you, as an employer, receive information and documents that, on their face, appear valid and consistent, you do not need to investigate further. However, if you receive obvious forgeries, information that does not match the employee, or other data that makes you think you should ask more questions, then you need to continue your inquiry as to the employee's immigration status.

A good business practice is to conduct yourself an audit or hire an immigration lawyer to audit your I-9's and supporting documents to be sure they comply with the law. Here are some do's and don'ts when going through the I-9 verification process:

During an employee's first day, give the employee a list of documents that can be used to verify status. Determine if the employee already has employment authorization. Ask questions about name changes. Make sure documents provided by the employee are on the lists of acceptable documents. A good immigration attorney can help you with these lists. Review documents for authenticity. Are there obvious signs of tampering or forgery? Reject documents if they are clearly fakes. If a document looks valid on its face and is listed as a qualified document on the I-9, accept the document. Retain I-9's for three years, or one year after employment ends, whichever is longer. I-9 forms can be inspected by DHS on three days' notice, without even a warrant or subpoena.

Employers cannot discriminate against an employee because of citizenship status or national origin through "document abuse," which is asking the employee for more documents than necessary or different documents to prove employment eligibility. However, employers do have duties to confirm employment eligibility as outlined in this post.

This post is certainly not comprehensive, and I encourage my employer-clients to conduct immigration and I-9 audits annually. An immigration attorney can give you guidance in systematizing these processes to ensure DHS compliance.

Tiffany U. Vivo is an Indianapolis immigration and family law attorney. She practices exclusively in immigration and family law, and lectures and writes frequently on immigration law for businesses, employees and families. Follow her at her blog site-

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