Employees must present their employer with proof of their legal right to work in the US to be legally hired there. Every new employee must complete Form I-9, which was first made necessary by the Immigration Reform and Control Act of 1986 (IRCA), regardless of their country of origin or citizenship status. The I-9 confirms an employee’s eligibility, and if the company doesn’t confirm a person’s identity, they risk fines.
The significance of employee verification has become increasingly important as national security concerns have grown. Employee paperwork is governed by federal and state legislation, and consequences for violations have become more severe. Employee paperwork deals with immigration, taxes, and hiring minors, among other things.
What Is the Verification of Employment Eligibility?
Verifying an employee’s employment eligibility is how companies determine whether a foreign worker is authorized to work in the US. All employers are forbidden by federal and state law from employing illegal aliens or foreign workers who are not authorized to work in the US.
By asking the employee to submit formal documentation that attests to their job status, it is typically possible to confirm their employment eligibility. The federal immigration administration just launched the E-Verify immigration system for employers. The E-Verify system enables employers to enter and verify employee data through online computer systems.
Employment eligibility verification law violations are taken very seriously because they may have major legal repercussions for employers. These penalties could include fines, time behind bars, and the loss of a work license in some areas.
What Steps Are Involved in the Employment Eligibility Verification Process?
The primary record employers must submit to the government to confirm an employee’s eligibility for employment is Form I-9. In most cases, employers must finish a Form I-9 within three days of employing a new employee.
The I-9 Form’s information is typically supported by other employment documents that the worker must furnish. Birth certificates, passports, and social security numbers are a few examples of such papers. These records will assist in proving that the foreign worker is authorized to work in the nation.
The proper employment or immigration agency will then receive the Form I-9 that the employer has completed. The information on the hard copy of the I-9 can be promptly cross-referenced with online electronic databases if the employer is using the E-Verify system.
It may indicate that an employee committed document fraud if the data on the form does not match the data stored in the computer database. Over the past ten years, immigration and employment authorities have started to enforce employment eligibility checks much more aggressively. However, the E-Verify technology has greatly accelerated and improved the procedure.
Which Document Types Must an Employee Provide to Their Employer?
All employees must complete the federal Form I-9, which is typically used with the E-Verify system. For some jobs, the usage of this program, which compares the document to other public records, is required.
There are several types of documents that an employee must supply in addition to the I-9 Form, which they must complete within three days of being recruited, including:
- Identification and employment eligibility proof documents:
- American passport
- A citizenship certificate
- Naturalization certificate;
- Card for Permanent Residents;
- Foreign passport that is still valid with Form I-94;
- Unemployment Authorization Card that is still valid;
- Valid re-entry authorization;
- Temporary resident card that has not expired;
- Unrestricted refugee travel authorization; or
- Unused Department of Homeland Security employment authorization document with a photo.
- One document from List B and one from List C proving employment eligibility are all required for an employee to prove their identity.
- Identity Verification List B:
- A driver’s license or ID card issued by the state;
- Federal ID card with a photo;
- Photo ID from the school;
- US Coast Guard Merchant Mariner Card, military dependent ID card, or US Military Card;
- Tribal records of Native Americans; or
- Driver’s license issued by the Canadian government.
- List C (Eligibility for Employment):
- United States Social Security Card;
- Certificate of birth;
- Birth Abroad Certification (Form FS-545 or Form DS-1350);
- American Citizen ID Card
- Tribal Native American document;
- ID card for residents and citizens (Form I-179); alternatively
- Employment authorization form issued by DHS.
What Repercussions Result from a Failure to Confirm an Employee’s Immigration Status?
There may be severe legal repercussions if the immigration status of an employee is not confirmed. Among the sanctions for employing an unauthorized immigrant are the following:
- Criminal fines
- Charges concerning intentional behavior (such as assisting in the deception of an immigration authority)
- For egregious cases of repeated offenses, possible jail time
- The employer’s business operation license being revoked or suspended
What Does the Employers’ “Good Faith Defense” Entail?
You may be able to assert the good faith defense if you, as an employer, have been accused of breaking the law requiring the verification of an applicant’s eligibility. This argument states that if an employer made a reasonable, good-faith effort to confirm the employee’s work eligibility status, they could not be held accountable for document fraud.
The employer is typically not compelled to conduct further investigation if the employee has submitted information on documents that, at first glance, appear to be valid.
However, if the employee offers untrue information or submits an obviously fake document, the employer should conduct a more thorough examination. If the information on Form I-9 does not match the information in an E-Verify database, the employer should also look into the matter further.
Therefore, the employer cannot be claimed to have acted in “good faith” during the hiring process if they become aware that an employment document is blatantly fake yet take no further action. However, if the documents look legitimate and the employer doesn’t look into it further, they are operating reasonably and may use the good faith argument if necessary.
Do Employment Verification Violations Have Any Defenses?
Yes, an employer must act intentionally to be charged with a violation. That is to say; they must have purposefully neglected to check the employee’s paperwork and employment status.
Alternatively, they must have actively helped the employee fool immigration officials. For instance, the employer might be held accountable for a violation if they knew the employee did not have the required authorization to work in the United States.
On the other hand, the “good faith defense” will typically be admissible, provided the employer took all necessary procedures to confirm the worker’s status. In other words, provided the employee made a good faith, reasonable effort to abide by the applicable hiring and employment rules, they can often mount a strong argument.
Do I Require Legal Counsel if I Have Employment Eligibility Verification Issues?
Employers must have a thorough understanding of job eligibility rules. You might want to speak with a contract lawyer in your area for guidance if you are unsure about the laws in your state. Additionally, if you have been charged with breaking the requirements for employment eligibility, a qualified lawyer can assist in defending you in court.
Your lawyer can ensure that you follow the law, safeguard your organization, and protect your business. Your lawyer can give you legal counsel if you need to appear in court for a hearing, and can keep you updated if there are any developments that might affect your legal rights.