HR U Can Trust Blog

A blog providing trustworthy Human Resources advice to business owners, managers and employees plus the occasional LOL true story from the workplace.

Do you have any illegal immigrants working for you?

Tiffany Boyes - Tuesday, June 04, 2019

Do you have any illegal immigrants working for you?



The Immigration and Nationality Act forbids employers from hiring undocumented immigrants. IRCA applies to all employers, including those that hire domestic help or farm laborers. Employers are required to verify that all employees are legally eligible to work in the United States. Employees must provide employers with documents that show (1) identity and (2) employment eligibility. Employees must also complete an Employment Eligibility Verification Form, known as Form I-9.

Form I-9 is used for verifying the identity and employment authorization of people hired for employment in the United States. All U.S. employers must ensure correct completion of Form I-9 for each person they hire. This includes both citizens and non-citizens. Both employees and employers must complete the form. On the form, an employee must confirm their employment authorization. The employer must examine the employment eligibility and identity documents the employee presents to determine whether the documents reasonably appear to be genuine and to record the document information on the I-9.


Record keeping for I-9 forms (and related documentation) must be retained for the duration of employment for current employees. Upon termination of employment, forms should be retained for 3 years after the worker’s hired in date or for 1 year after termination, whichever is longer. Since Immigration and Customs Enforcement may inspect the I-9 forms at any time, it is recommended that these be kept in a separate file and not as part of each employee's personnel file.


Failure to complete and maintain the forms can be costly, as illustrated by a decision from the 9th Circuit. The court affirmed civil penalties that had been imposed on an employer by U.S. Immigration and Customs Enforcement. Ketchikan Drywall Services, Inc. (KDS) is a small Washington employer with just four full-time and around 20 part-time employees. Sometimes drywall projects require more workers, so KDS hires on temporary employees as needed. The temps are required to go to the company's offices to provide information for their "Employment Eligibility Verification Forms" before beginning work on a project.


Over the years, responsibility for completing the I-9 forms was passed between nearly a dozen employees who had no exact training for the task. ICE had warned KDS of deficiencies following an I-9 audit in 2000. In 2006, KDS hired a new comptroller who had I-9 training and tried to improve compliance with the required documentation. Then in 2008 came yet another audit. This audit uncovered many problems. According to ICE, KDS had failed to provide any I-9 forms for 43 employees. It had also neglected to complete the attestation section of the forms (Section 1) for another 65 employees and to note the supporting documents (Section 2) for 110 more. Finally, there were 53 employees on whose I-9 forms Sections 1 and 2 were both lacking. When ICE proposed a civil penalty of $286,624, KDS requested a hearing before an administrative law judge (ALJ).


KDS argued at the hearing that it had complied with I-9 requirements by retaining copies of the supporting documents for many employees, even if the related I-9 form wasn't completely filled out and signed. It said that ICE could verify the workers' legal status by examining the underlying documents. The ALJ wasn't persuaded by those arguments. He did determine, however, that ICE's evidence fell short on some violations and reduced the fine to $173,250. KDS appealed to the 9th Circuit. The 9th Circuit found KDS's position lacking. Copying of documents was no substitute for an employer's careful examination of and verification of the legal status of each worker. And, the court noted, ICE shouldn't have to sort through documents to independently verify a worker's status. Regulations state that the I-9 forms are to be "fully" completed. Partial completion falls short, regardless of an employer's claimed "good faith." Even without any unauthorized workers in your workforce, employers can face significant penalties for not completing the Form I-9 correctly.


Even though employers have been required to complete an I-9 for each new hire since 1986, many employers have been lax with their I-9 compliance, often entrusting the process to the most junior HR and administrative staff. However, as immigration has moved into the national spotlight in recent years, enforcement against employers has increased. It's best to keep up with current rules and regulations concerning Form I-9. This will ensure that your company will not have to pay any civil fines or even face debarment. Get in touch today and we can arrange an initial review of your current I-9 practices. If we are unable to assist you with all of your HR needs, we will put you in touch with an HR professional who can.




Source: Federal Employment Law Insider







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