The Immigration Reform and Control Act of 1986 created new duties for employers. It made every employer responsible for enforcement of some immigration laws. A new program was established called “Employer Sanctions,” making every employer collect proof to verify that each employee is authorized to be employed in the United States. This places a heavy burden on the employer and the employee.
Every employee must be able to provide documents to the employer proving his or her eligibility for employment, even if he or she is a U.S. citizen. Under this law, it is unlawful for an individual or business to hire, recruit, refer for a fee or continue to employ an alien knowing that the alien is unauthorized to work. The law requires the employer to physically inspect the documents designated by United States Citizenship and Immigration Services (USCIS).
Two (2) documents are required: one establishing identity and the other employment authorization. The employer must also complete Form I-9 (employment verification form) swearing, under penalty of perjury, that the employee produced the required documents. In most cases, this verification procedure must take place within three (3) days of hiring. To protect citizens of other countries holding appropriate employment authorization, the Act also bans employers from unfair immigration-related practices in hiring, recruiting, and firing people on the basis of their national origin or citizenship. Failure to comply with this law can result in severe civil penalties.
What are Employer Sanctions?
Employer sanctions are a system of federal laws that prohibit employers from:
(1) hiring, in the United States, a foreign citizen whom the employer knows (through actual or constructive knowledge) is unauthorized for the employment; and
(2) continuing to employ, in the United States, a foreign citizen whom the employer learns (through actual or constructive knowledge) is unauthorized for the employment.
Employers who violate these prohibitions are penalized. Employment is any service or labor performed by an individual for another person or entity, for wages or other compensation (or the expectation of compensation) within the United States. Even the shortest service at minimal salary would most likely be considered employment.
What is Employment?
If the work is not paid, such as volunteer services or labor, it probably is not employment. At time wages are postponed to an individual without employment authorization until the authorization is granted. In these cases, delaying the payment of wages or other compensation will not necessarily prevent the services or labor being characterized as employment.
Labor or services provided by an independent contractor will not constitute employment. Contract services or labor does not constitute employment. If there is any question, the nature of the relationship between the independent contractor and the business using its labor or services will be studied in order to determine whether the contractor is truly independent. The greater number of different contracts with different entities increases the chance of being considered independent and not employed. The more independence and discretion the contractor has in the performance of his or her labor or services, the more likely it is that the contractor is independent and not an employee. Please note, however, that if a person or business engages the services of an independent contractor who, in turn, employs unauthorized foreign citizens, then it may be found to have violated the Employer Sanctions if the person or business knew the contractor’s employees were unauthorized.
What is Authorized Employment?
In order for employment to be lawful, it must be (a) permitted under U.S. federal law, and (b) in accordance with the terms, duration and scope of the non U.S. citizen’s immigrant or nonimmigrant status and employment authorization, if any.
What is Unauthorized Employment?
Unauthorized employment is services or labor provided in the United States by a nonimmigrant foreign citizen:
- Whose nonimmigrant status bans all employment; or
- Whose nonimmigrant status only permits employment in a different position, or for different employer;
- Who entered without a visa and has not received an Employment Authorization Document from the USCIS.
- Whose nonimmigrant status requires the foreign citizen to obtain a specific Employment Authorization Document from the USCIS, where the foreign citizen has not yet applied for, or been issued, this document.
What is Employment Authorization?
Employment authorization is permission to work in the United States. All U.S. citizens and permanent residents hold permanent employment authorization in the United States. The duration and scope of employment authorization for all others (called nonimmigrant) vary:
(A) Some nonimmigrant visas prohibit employment in the United States. Tourists and business visitors, for example, may not work at all.
(B) Some nonimmigrant visas require the foreign citizen to obtain a special documents evidencing employment authorization from the United States Citizenship and Immigration Services before working. This is called an Employment Authorization Document (EAD). This type of employment authorization is temporary.
(C) Some nonimmigrant visas automatically grant employment authorization, and do not require any additional documentation. Foreign citizens holding H-1B, L-1 or E status fall into this category. This type of employment authorization is temporary and job-specific.
Duration of Employment Authorization
Employment authorization may be indefinite or temporary in length of time.
Only U.S. citizens and permanent resident status hold indefinite employment authorization. Indefinite employment authorization lasts for as long as the individual remains a U.S. citizenship or permanent residence.
In cases of temporary employment authorization an Employment Authorization Document (EAD) is issued. There is an expiration date to the Employment Authorization.
Scope of Employment Authorization
Employment authorizations may be job-specific or general in scope. A general employment authorization means that the foreign citizen may work for any U.S. employer. Job-specific employment authorization means that the foreign citizen may only work for one employer.
The I-9 Form Requirement
Each time there is a new hire, an I-9 form must be completed. The new employee must complete Section 1 on or before the first day he or she starts. Many companies have the new hire complete the I-9 before his or her first day of work when completing other new hire paperwork. It seems the most prudent path to treat all new employees the same is to require them to complete the I-9 before start of employment. This will assist in the prevention of a discrimination suit.
Once the new employee completes section 1, the company representative, usually the Human Resources department completes section 2. In section 2, the employer established that the new employee is authorized to work. Many types of documentation can be used to establish authorization to work. They are listed in the back of the I-9. Employers cannot require the new hire to bring any specific document, such as a green card. Some people provide a passport; many provide a driver’s license and social security card. The employer and/or HR staff should familiarize themselves with the types of documents listed on the back of the I-9 form so that they may be able accurately determine which documents are acceptable.
After the I-9 employment eligibility form is completed, it should be reviewed and filed away in a separate I-9 file; separate from the employee’s personnel file. If the new employee has temporary work authorization, the date should be tracked. After a specific period, e.g. one year, the I-9 file should be reviewed. Terminated employees should have their I-9 forms pulled and placed in a terminated I-9 file. It is required that I-9’s for terminated employees be kept for three (3) years beyond the start date or one (1) year beyond the termination date, whichever is later.