Verifying the Legal Status
of Your Employees Without Committing Unlawful Discrimination
Did you know that your business must review documentation
from each new hire to verify that he or she is eligible to
work in the United States? This obligation applies even to
small businesses that employ one employee!
Did you also know that employers that verify the employment
eligibility of employees in a discriminatory manner are subject
to discrimination complaints, civil penalties, back pay awards,
and attorney's fees?
Since 1986, all businesses must verify the employment eligibility
of new employees. Although a simple process, some employers
make unintentional mistakes, or perform the process in a discriminatory
manner. This article will give you helpful real-life tips
so that you can employ those workers who will best help your
business grow.
After you hire a new employee, you must verify his or her
identity and employment eligibility. This is done by completing
an Employment Eligibility Verification Form (Form I-9). You
can download this form from http://www.usdoj.gov/crt/osc/htm/facts.htm.
On the first day of work, the employee must complete section
1 of the form, in which he or she certifies employment eligibility
by checking whether he or she is a U.S. citizen, noncitizen national, lawful permanent
resident, or an alien otherwise authorized to work in the
United States. Although the employee must complete and sign
section 1, it is your responsibility to ensure that section
1 is completed before the end of the employee's first work
day. (If an employee is unable to complete section 1 on his
or her own, it may be prepared by another person who must
sign the preparer/translator certification.)
On or before the third day of work, the employee must present
documentation evidencing his or her identity and eligibility
for employment in the United States. The employee must present
either one document from list A of the Form I-9 (establishing
both identity and employment eligibility), or one document
from list B (establishing identity) and one document from
list C (establishing employment eligibility). There are special
rules for receipts, and some acceptable documents are not
listed on the Form I-9; call the Office of Special Counsel
employer hotline (toll free) for more information.
You must then complete and sign section 2 of the Form I-9
certifying that the documentation appears genuine on its face,
and reasonably relates to the person presenting it. The Form
I-9 must be retained for three years after the date of hire,
or one year after the date employment ends, whichever is later.
It's that simple!
Failure to complete and retain the Form I-9, or knowingly
hiring unauthorized workers, violates the immigration laws
of the United States, and can lead to prosecution and civil
penalties. However, you must take care not to discriminate
against new employees by limiting the choice of acceptable
documents, rejecting documents that reasonably appear to be
genuine, or by treating individuals differently based upon
their national origin, or citizenship or immigration status.
Here are some simple tips to help guide you through the process.
- Provide your new employee with the Form I-9, including
the instructions.
- Require your new employee to complete and sign Section
1 on the first day of work.
- Show your new employees the lists of acceptable documents
on the back of the Form I-9.
- Give your employee the choice of what documentation to
present.
- Accept documents that reasonably appear to be genuine
and to relate to the employee. You are neither required
nor expected to be a document expert.
- Complete and sign section 2 of the form, and retain it
for the appropriate time period.
- Treat all employees equally; do not limit the choice of
acceptable documents for non-citizens, or individuals who
may appear or sound "foreign." Non-citizens may
present a driver's license and unrestricted' Social
Security card to establish their identity and employment
eligibility.
- Do not institute a U.S. citizens-only hiring policy or
U.S. citizens and green card (or lawful permanent resident)
hiring policy unless otherwise required in order to comply
with law, regulation, executive order, or government contract.
There are many types of immigrants who are legally eligible
to work in the United States, including refugees and asylees.
For more information about avoiding discriminatory practices,
call the Office of Special Counsel Employer Hotline at 1-800-255-8155
or visit http://www.usdoj.gov/crt/osc/index.html.
For more information about the lists of acceptable documents,
visit http://www.uscis.gov/files/nativedocuments/m-274.pdf.
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