Employment Eligibility Verification

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What is Employment Eligibility Verification?

Employment eligibility verification is the process by which employers confirm that their foreign employees are eligible for work in the U.S.  According to both federal and state laws, all employers are prohibited from hiring illegal aliens or foreign employees who are not eligible for U.S. work. 

Verifying employment eligibility is usually accomplished by requesting the employee to provide official documents that support their work status.  Recently, the immigration department has implemented the immigration E-Verify system for employers.  The E-Verify system allows the employer to submit and check their employee’s data through online computer systems.   

Violations of employment eligibility verification laws are treated very seriously- they can result in severe legal consequences for employers.  These may include fines, jail time, and in some states, a loss of employment license.   

What Does the the Employment Eligibility Verification Process Involve?

Form I-9 is the main document that employers must submit in order to verify an employee’s work eligibility.  Employers are generally required to complete a Form I-9 within three days of hiring an employee. 

The worker must usually provide additional employee documentation to support the information that they state in the I-9 Form.  This may include documents such as birth certificates, passports, and social security numbers.  These documents will help confirm that the foreign worker has the legal right to work in the U.S. 

The employer will then submit the completed Form I-9 to the appropriate employment or immigration agency.  If the employer is using the E-Verify system, they can immediately check the information provided in the hard copy of the I-9 against electronic databases online. 

If the information on the form does not match the information in the computer database, it may be a signal that the employee has engaged in document fraud.  Immigration and employment authorities have begun enforcing employment eligibility verification much more strictly in the past decade.  However, the introduction of the E-Verify system has also made the process much quicker and more efficient. 

What is the “Good Faith Defense” for Employers?

If, as an employer you have been accused of violating employment eligibility verification laws, you may be able to claim the “Good Faith defense”.  According to this defense, an employer cannot be held liable for document fraud if they have made a reasonable, good faith effort to verify the employee’s work eligibility status.

If the employee has provided information on documents that appear to be valid on their face, the employer is generally not required to investigate any further. 

However, the employer should conduct a more extensive investigation if the employee provides information that is obviously false, or if they submit a document that is obviously a forgery.  Also, the employer should conduct a deeper investigation if the Form I-9 does not match the data contained in an E-Verify database. 

So, if the employer notices that an employment document is obviously fraudulent, yet does not investigate any further, they cannot be said to have exercised “good faith” in the hiring process.  On the other, hand, if it appears that the documents are valid, and the employer does not conduct further investigation, they are acting reasonably and can raise the good faith defense if necessary.

Do I Need a Lawyer for Issues with Employment Eligibility Verification?

If you are an employer, you need to understand employment eligibility laws very clearly.  If you are unsure about the laws in your state, you may wish to contact a lawyer for advice.  Also, if you have been accused of violating employment eligibility standards, an experienced attorney can help represent you in a court of law. 

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Last Modified: 08-09-2011 02:17 PM PDT

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