Employee Documentation Laws

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 What Is Employee Documentation?

Employee documentation refers to the necessary paperwork and files that an employer maintains for each of their employees. This documentation aids in confirming an individual’s eligibility to work within the country and helps in adhering to local, state, and federal regulations. Proper documentation ensures that both the employer and the employee comply with labor and immigration laws.

What Types of Documents Must an Employee Provide Their Employer?

For U.S. employers, the most significant document required for verifying an employee’s authorization to work is the Form I-9, Employment Eligibility Verification.

List A Documents: Identity and Employment Authorization

List A documents are unique because they provide proof of both an individual’s identity and their eligibility to work in the U.S.

  • U.S. Passport or U.S. Passport Card: This is issued by the U.S. Department of State and can be used by U.S. citizens for international travel. To obtain or renew one, an individual needs to provide proof of citizenship and identity, such as a birth certificate and a valid photo ID.
  • Permanent Resident Card (often called a Green Card): This card proves that a non-U.S. citizen has been granted the privilege of residing permanently in the U.S. It can be obtained after following a multi-step process, which often starts with filing a petition sponsored by a family member or employer in the U.S.
  • Employment Authorization Document (EAD): Also known as Form I-766, the EAD is a card that proves that certain categories of foreign nationals are allowed to work in the U.S. for a specific time period. Applying for an EAD usually involves submitting Form I-765, Application for Employment Authorization, to USCIS.

List B Documents: Identity Verification

List B documents certify an individual’s identity, but they do not provide any information regarding the person’s employment verification.

  • Driver’s License: Issued by individual states, a driver’s license not only allows a person to legally drive but also acts as a standard form of identification. Gathering this requires visiting a local Department of Motor Vehicles (DMV) or similar state agency, providing proof of identity, residency, and passing the necessary driving tests.
  • Voter’s Registration Card: This indicates an individual’s registration to vote in federal and state elections. It’s procured by registering to vote in one’s local jurisdiction, often through the local county or city’s electoral office.
  • School ID with a photograph: Typically issued by educational institutions for their students, staff, or faculty. Acquiring one generally involves being affiliated with an educational institution and having a photo taken at their administrative offices.

List C Documents: Employment Authorization

These documents don’t provide information about an individual’s identity but prove their authorization to work in the U.S.

  • Social Security Account Number Card: This card indicates that its holder has been granted a Social Security number (SSN). To obtain a SSN, one must typically submit an application to the Social Security Administration along with evidence of age, identity, and U.S. citizenship or lawful alien status.
  • Certification of Birth Abroad Issued by the Department of State: This is for U.S. citizens born outside of the U.S. to American parents. It’s acquired by submitting an application to the U.S. Department of State, typically through a U.S. embassy or consulate.
  • Birth Certificate: A document that certifies the birth of a person. In the U.S., birth certificates are usually issued by the vital records office of the state or jurisdiction where the birth occurred. To get a copy, one usually needs to submit a request to this office, either in person, by mail, or online.

Employers should be careful to avoid discrimination or assumptions based on which documents an employee chooses to provide. They must accept any valid document from the appropriate list that an employee presents.

Employees are required to present one document from List A or one from both List B and List C.

What Are the Legal Penalties for Violating Employee Documentation Requirements?

Violating employee documentation requirements can lead to serious consequences for employers. If an employer is found to have knowingly hired or continued to employ an unauthorized worker, they can face penalties. Fines can range from hundreds to thousands of dollars per violation. Repeated offenses can result in heftier fines, and in some cases, imprisonment.

Additionally, employers might face employment documentation disputes, which can result in legal proceedings, further fines, or even loss of business licenses in extreme situations.

On the other side, employees found working without proper authorization can face deportation, visa cancellations, or bars from re-entering the country.

Let’s dive into the consequences that employees may face if they’re found working without proper authorization:

1. Deportation

  • Explanation: Deportation is a legal process wherein a non-citizen is formally removed from the U.S. due to various reasons, one of which can be working without proper authorization. Deportation proceedings are initiated by the U.S. government, specifically by the Department of Homeland Security (DHS).
  • Example: Maria, a tourist from Brazil, finds a temporary job in the U.S. even though her visa doesn’t allow employment. If discovered, she could be placed into deportation proceedings. If deported, she would be returned to Brazil.
  • Avoidance: To prevent this, Maria should have either refrained from accepting employment or applied for a change in her immigration status that allows work (like an employment visa).

2. Visa Cancellations

  • Explanation: If someone is found working without the appropriate authorization, their visa can be revoked, which means the individual loses the legal basis of their stay in the U.S.
  • Example: Raj, an Indian student on an F-1 visa, starts working off-campus without obtaining the necessary work permit called Optional Practical Training (OPT). When this unauthorized employment is discovered during a routine check by his school, his F-1 visa status is jeopardized and might be canceled.
  • Avoidance: Raj should have either stuck to on-campus jobs (which usually don’t require additional work authorization) or applied for OPT before engaging in off-campus employment.

3. Bars from Re-entering the Country

  • Explanation: Working without authorization can lead to a foreign national being barred or prohibited from returning to the U.S. for a specified number of years, usually 3 or 10 years, depending on the length of their unauthorized stay.
  • Example: Ahmed overstays his tourist visa by more than a year and works during this period without the appropriate employment authorization. When he finally departs the U.S., he could face a 10-year bar, meaning he cannot re-enter the U.S. for 10 years.
  • Avoidance: Ahmed should have either left the U.S. before his visa expired or sought a change of status to one that permits employment. If he needed to stay longer, he should have applied for an extension or change of visa status before his initial visa expired.

While these examples outline general scenarios, every individual case can have unique elements that affect outcomes. Always working within the boundaries of one’s visa and staying informed about its conditions is the best way to avoid these consequences. If unsure about work authorization or any visa condition, it’s always advisable to consult with an immigration attorney.

Do I Need to Contact a Lawyer for Employee Documentation Issues?

If you suspect there have been violations related to employee documentation or if you’re facing an employment documentation dispute, consult with a legal professional. An experienced employment lawyer can provide guidance, ensure you’re compliant with all relevant regulations, and represent you in any legal proceedings.

For assistance, consider reaching out to an employment lawyer through LegalMatch.

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