G. Immigration Checks

Companies must be mindful of many potential problems relating to hiring aliens, immigrants and minorities. For example, The Immi- gration Reform and Control Act of 1986 states that employers should hire only U.S. citizens and aliens who are authorized to work in the United States. The law requires every employer to verify the employment eligibility of every worker hired to avoid civil fines and criminal penalties for failure to comply with the law's record keeping requirements. The law requires each company to follow fixed guide- lines regardless of company size or the number of employees being hired. The Immigration and Naturalization Service has developed a Form I-9 that employers must complete and retain in order to verify employment eligibility for all employees.

Essentially, employers have five verification obligations:

1. Employees must be instructed to fill out their portion of the Form I-9 when they begin work;
2. Employers must check documents establishing employees' identity and eligibility to work;
3. Employers must properly complete the remaining portion of Form I-9;
4. Employers must retain the Form for at least three years or until one year after a person leaves employment, whichever is later; and
5. Employers must present the Form for inspection to INS or Department of Labor officials upon request after three days' advance notice.

All companies must verify the identity and work authorization of every person hired. Evidence must be examined, collected and saved by the employer to refute charges that it knew it was hiring an unauthorized alien.

Form 1-9 must be completed and attested to by the new employee at the time of hiring; the company must review all documentation and submit the Form within three business days of the hiring. The applicant has 21 additional business days to furnish documents which are lost or are not yet processed. Copies of the INS Form may be obtained from any district INS office and photocopied for future use by other applicants.

All completed I-9 Forms must be saved for at least three years after the hiring, or for one year after the person is terminated, whichever occurs later; these rules apply to temporary workers and independent contractors as well. However, companies are not obligated to verify employment eligibility for people working as employees for such independent contractors.

Employers failing to follow the law are currently liable for fines ranging from $250 to $2,000 for each unauthorized alien hiring for a first offense; $2,000 to $5,000 for each unauthorized alien for a second offense; and $3,000 to $10,000 for each unauthorized alien for subsequent offenses. The law also imposes criminal penalties against companies and their principal officers up to $3,000 for each unauthorized alien with respect to whom a violation occurs, or imprisonment for not more than six months, or both.

TIP: If an employer can show that he or she has complied with the Form I-9 requirements, then the employer has established a "good faith" defense with respect to a charge of knowingly hiring an unauthorized alien, unless the government can show that the employer had actual knowledge of the unauthorized status of the employee. However, violations of the law exist when employers fail to comply with the Form I-9 requirements, engage in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens, engage in fraud or false statements, misuse visas, immigration permits and identity documents, or engage in unfair immigration- related employment practices.

Related Discrimination Concerns

Companies should also be aware that the Act contains anti-dis- crimination elements. For example, companies with more than four employees are forbidden from hiring, recruiting or discharging any person (other than an unauthorized alien) on the basis of race, sex, national origin or citizenship status. Sanctions can be imposed ranging up to $2,000 for each employee discriminated against in addition to the more common damages asserted and collected by litigants in Equal Employment Opportunity Commission (EEOC) discrimination cases.

Counsel Comment #11: Do not ask an applicant to produce identity and authorization documents until after the decision to hire has been made and accepted; you may be accused of violating the law if you decide not to hire a person after viewing documentation that he/she is a legal worker. If you discover that the person is an illegal alien, you then have the right to deny employment on that basis without risking exposure under The Immigration Reform and Control Act. You would also avoid exposure to a case litigated by the individual with private counsel or in conjunction with the EEOC or the state's Division of Human Rights.

The following points may answer many common questions.

• Citizens and nationals of the United States need to prove they are eligible for work.
• Companies need not complete I-9 Forms for everyone who applies for a job; only for those actually hired.
• The Form need not be filled out when the person is hired, only when the person actually begins working.
• Anyone receiving remuneration (i.e., anything of value, even if only food and lodging) must complete the Form.
• I-9 Forms need not be filled out for independent contractors, but you cannot knowingly use this loophole to circumvent the law.
• If the person hired is unable to produce the required documents within three days after hire, the employee must produce a receipt showing that he or she has applied for the document and must present the actual document to you within 90 days of the hire.
• Your company can fire any employee who fails to produce the required documents within three business days, provided this practice is applied uniformly to all employees.
• If the employer properly completes a Form I-9 and the INS discovers that the employee is not actually authorized to work, a good faith defense exists and your company should not be charged with a verification violation.
• Employers are required to examine carefully the documents presented to verify their authenticity.
• Employers may accept an expired United States Passport.
• Laminated Social Security cards may not be acceptable; Social Security Administration printouts are also not acceptableonly a person's official Social Security card will suffice.
• Employers may not accept photocopies of documents. The only exception is a certified copy of a birth certificate.
• It is not essential to make copies of all documents presented; but if your company does make copies, do so for all employees.
• When re-hiring a person who previously filled out an I-9 Form, you need not complete a new Form if the rehiring is within 3 years of completion of the original Form.
• You do not need to complete a new I-9 Form for promoted or transferred employees.

Hiring Preferences

Can U.S. applicants be given hiring preference over qualified aliens? If your company is considering hiring an alien, it must seek labor certification from the Department of Labor. The certification process is designed to preserve available jobs for qualified U.S. workers. If any qualified U.S. workers have applied for a position, they must be given preference, even if they are less qualified than the alien.

Language Rules

With more foreign-born employees entering the workforce, a wave of English-only regulations has been spreading among companies through- out the United States. Some of these regulations are very restrictive (only English may be spoken on company premises); others are fairly loose (only English may be spoken when customers are present); and many more are merely the verbal equivalents of informal company policy.

The Equal Employment Opportunity Commission (EEOC) has published strict guidelines relating to "English-only" rules. Therefore, the commission will presume that such a rule violates Title VII and will closely scrutinize it.

Depending on the circumstances, it may be permissible to regulate use of a foreign language in cases where groups of employees are performing hazardous tasks and fast and precise communication among all of them is essential. The burden of proving such a compelling business necessity falls on the employer.

Counsel Comment #12: Where applicable, the person in charge of hiring should go to great lengths to explain that the job being offered is dangerous, that other workers in the prospective employee's area speak only English, and that an "English-only" rule is essential for employee safety. This may demonstrate your company was reasonable in applying such a policy.