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Frequently Asked Questions About Immigration Law

Frequently Asked Questions About Immigration Law

March 19, 2008

Q. Do citizens and nationals of the United States need to prove they are eligible to work?

A. Yes. While citizens and nationals of the United States are automatically eligible for employment, they too must present the required documents and complete an I-9 Form.

Q. Does an employer need to complete an I-9 for everyone who applies for a job?

A. No. An employer needs to complete I-9’s only for people actually hired.

Q. If someone accepts a job but will not start work for a month, can an employer complete the I-9 when the employee accepts the job?

A. No. The law requires that an employer complete the I-9 only when the person actually begins working.

Q. Does an employer need to fill out an I-9 for independent contractors or their employees?

A. No. For example, if an employer contracts with a construction company to perform renovations, there is no obligation to complete I-9’s for that company’s employees. The construction company is responsible for completing I-9’s for its own employees.

Q. What should an employer do if the person hired is unable to provide the required documents within three business days of the date employment begins?

A. If an employee is unable to present the required document or documents within three business days of the date employment begins, the employee must produce a receipt showing that he or she has applied for the document. In addition, the employee must present the actual document within 90 days of the hire.

Q. Can an employer terminate an employee who fails to produce the required documents within three business days?

A. Yes. An employer can terminate an employee who fails to produce the required document or documents, or a receipt for a document, within three business days of the date employment begins. However, an employer must apply these practices uniformly to all employees. If an employee has presented a receipt for a document, he or she must produce the actual document within 90 days of the date employment begins.

Q. What happens if an employer properly completes a Form I-9 and INS discovers that the employee is not actually authorized to work?

A. An employer cannot be charged with a verification violation, and will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien, where the following is done:

● Ensured that employees fully and properly completed Section 1 of the I-9 at the time employment began;

● Reviewed the required documents which should have reasonably appeared to have been genuine and to have related to the person presenting them;

● Fully and properly completed Section 2 of the I-9, and signed and dated the employer certification;

● Retained the I-9 for the required period of time; and

● Made the I-9 available upon request to a Federal government officer.

Q. What is an employer’s responsibility concerning the authenticity of document(s) presented?

A. An employer must examine the document(s) and, if they reasonably appear on their face to be genuine and to relate to the person presenting them, accept them. To do otherwise could be an unfair immigration-related employment practice. If the document(s) do not reasonably appear on their face to be genuine or to relate to the person presenting them, an employer must not accept them.

Q. May an employer accept a photocopy of a document presented by an employee?

A. No. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate.

Q. What are the requirements for retaining the I-9?

A. An employer must retain the I-9 for 3 years after the date employment begins or 1 year after the date the person’s employment is terminated, whichever is later.

Q. How can an employer avoid discrimination against certain employees while still complying with this law?

A. An employer can avoid discriminating against certain employees and still comply with the law by applying the employment eligibility verification procedures of this law to all newly hired employees and by hiring without respect to the national origin or citizenship status of those persons authorized to work in the United States. To request to see identity and employment eligibility documents only from persons of a particular

origin or from persons who appear or sound foreign, is a violation of the employer sanctions laws and may also be a violation of Title VII of the Civil Rights Act of 1964. An employer should not discharge present employees, refuse to hire new employees, or otherwise discriminate on the basis of foreign appearance, accent, language, or name.

Q. Do undocumented workers have workplace rights?

A. There is a trend in federal government policy to extend more and more protection to undocumented workers.. They are covered by minimum wage laws and occupational safety laws. The National Labor Relations Board has ruled that employers who knowingly hire unauthorized workers are prohibited from firing them if they support unionization. The EEOC has declared that it will extend broad anti-discrimination rights to undocumented workers saying, “The federal discrimination laws protect all employees in the United States, regardless of their citizenship or work eligibility. Employers may no more discriminate against unauthorized workers than they may discriminate against any other employees. EEOC will therefore assure that in its enforcement of the laws, unauthorized workers are protected to the same degree as all other workers.” The EEOC will seek reinstatement for undocumented workers only when the individuals involved first obtained papers authorizing them to work in the United States. The Commission, however, will recommend back pay whether or not the immigrants had working papers.



Information courtesy of What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws


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