A small business employer, just like any other employer, must review documentation from each new hire to verify that he or she is eligible to work in the United States. This must be done even if the employer has just one employee.
Immigration and Nationality Act
The Immigration and Nationality Act (INA) governs immigration and citizenship in the United States. The INA includes provisions addressing employment eligibility, employment verification, and nondiscrimination. These provisions apply to all employers.
Employers must check to make sure all employees, regardless of citizenship or national origin, are allowed to work in the United States. If you aren't a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the United States.
Under the INA, employers may hire only persons who may legally work in the United States and aliens authorized to work in the U.S.
The employer must verify the identity and employment eligibility of anyone to be hired. Within three days of hire, employers must complete an Employment Eligibility Verification Form, commonly referred to as Form I-9 and, by examining acceptable forms of documentation supplied by the employee, confirm the employee's citizenship or eligibility to work in the United States. Employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer.
Discrimination on the basis of citizenship and national origin is prohibited by the Immigration Reform and Control Act of 1986 (IRCA), an amendment to the INA.
An employer 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, citizenship or immigration status. Employers can only request documentation specified on the I-9 form. Employers who ask for other types of documentation not listed on the I-9 form may be subject to discrimination lawsuits.
To avoid potential charges of discrimination:
- Provide a new employee with the Form I-9, including the instructions.
- Require a new employee to complete and sign Section 1 on the first day of work
- Show 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
- Complete and sign section 2 of the form, and retain it for the appropriate time period
- Treat all employees equally; don't limit the choice of acceptable documents for non-citizens or individuals who may appear or sound "foreign"
- Don't institute a US citizens-only hiring policy or US 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
The Department of Homeland Security (DHS) enforces the INA requirements on verification of employment eligibility. The US Immigration and Customs Enforcement (ICE) agency conducts routine workplace audits to ensure that employers are properly completing and retaining I-9 forms, and that employee information on I-9 forms match government records.
The Department of Justice's (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions and has the responsibility for handling complaints against all employers alleging citizenship status discrimination, document abuse, retaliation and, if the employer has four to 14 employees, national origin discrimination. The Equal Employment Opportunity Commission (EEOC) handles national origin discrimination complaints against employers with 15 or more employees.
Employers who fail to complete or retain the I-9 forms and those who knowingly hiring unauthorized workers can be prosecuted and have to pay penalties.
Back pay (for lost wages), instatement or reinstatement and so forth may be awarded to victims of unlawful discrimination.
U.S. citizens and work authorized immigrants who are victims of workplace discrimination based upon immigration status, national origin discrimination or document abuse may file complaints with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at the U.S. Department of Justice. The OSC may be reached by telephone at 202-616-5594 and 1-800-255-7688 or by contacting the U.S. Department of Justice, Office of Special Counsel.
Questions for Your Attorney
- The documentation I received from my employee was fake. What is my responsibility to check for false information?
- My employee says I discriminated against them. What do I need to show to prove that I haven't?
- Is there someone I can speak to about completing the I-9 paperwork so it's in compliance?