Understanding Employee Documentation

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 What Is The Immigration Reform And Control Act Of 1968?

The Immigration Reform and Control Act (“IRCA”) was signed into law in 1986. The purpose of this law was to amend, revise, reform, and reassess the status of unauthorized immigrants which was set forth in the Immigration and Nationality Act. It included sanctions against employers for hiring undocumented migrants, more border enforcement, as well as a more expansive legalization program.

This bill gave unauthorized immigrants the opportunity to apply and gain legal status if they met certain requirements. The status of those who applied was eventually determined by the U.S. Attorney General, while the Immigration and Naturalization Service is responsible for implementing this law.

The IRCA imposes requirements on employers such as:

  • Prohibiting employers from knowingly engaging in certain actions, such as hiring, recruiting, or referring for a fee any person who is unauthorized to work in the United States; and
  • Requiring employers to confirm their employees’ current immigration statutes.

Additionally, employers are required to verify both the identity and employment eligibility of employees, such as:

  • Regular but temporary workers;
  • Temporary agency personnel; and
  • Student employees.

Employers are required to complete and retain a one-page form which documents this verification, INS Form I-9. This is a requirement for all employees who are working in the United States. Form 1-9 requires the employer to:

  • Look at the employee’s forms of identification to ensure that they are not false or invalid;
  • Have the employee sign the I-9 form;
  • Ensure that the form is properly completed and legible;
  • Complete the verification section as well as record which documents were presented; and
  • Confirm that their employee is eligible for employment by signing the form.

Failure to verify a new employee’s identity and employment will result in the termination of employment for that employee.

What Is Employee Documentation?

To reiterate, an employee is required to provide their employer with documentation proving their eligibility to work in the U.S. Form I-9 is required for every new employee, regardless of their national origin or U.S. citizen status. Once again the I-9 verifies an employee’s eligibility, and if the employer fails to verify a person’s identity, they will be subject to various penalties.

The importance of verifying workers is taken very seriously. Both federal and state laws address employee documentation, and violation penalties have increased in severity over the years. Not only does employee documentation address immigration, but also taxation issues as well as the employment of minors.

The federal Form I-9 is mandatory for all employees, and is generally used in conjunction with the E-Verify system. This software cross-checks documents with other government records, and its use is mandatory for certain types of employment. In addition to the I-9 Form, which all newly hired employees must complete within three days of being hired, there are other forms of documentation that an employee must provide, including:

  1. Documents that Establish Identity and Employment Eligibility:
    • U.S. Passport;
    • Certificate of U.S. Citizenship;
    • Certificate of Naturalization;
    • Permanent Resident Card;
    • Unexpired foreign passport with Form I-94;
    • Unexpired Unemployment Authorization Card;
    • Unexpired Reentry Permit;
    • Unexpired Temporary Resident card;
    • Unexpired Refugee Travel Document; or
    • Unexpired Employment Authorization Document from the Department of Homeland Security with a photo.
  2. List B (Identity Verification):
    • State-issued driver’s license or ID card;
    • Federal ID card with photo;
    • School ID with photo;
    • U.S. Military Card, military dependent’s ID card, or U.S. Coast Guard Merchant Mariner Card;
    • Native American tribal document; or
    • Canadian government-issued driver’s license.
  3. List C (Employment Eligibility):
    • U.S. Social Security Card;
    • Birth certificate;
    • Certification of Birth Abroad (Form FS-545 or Form DS-1350);
    • U.S. Citizen ID Card;
    • Native American tribal document;
    • Resident Citizen ID card (Form I-179); or
    • DHS-issued employment authorization document.

An employee may establish their identity by providing one document from List B, and one document from List C that establishes employment eligibility.

Are There Any Legal Penalties For Hiring Undocumented Workers?

Once again, hiring undocumented workers is considered to be a serious crime. Penalties range from fines and the loss or suspension of a business license, to criminal charges. Additionally, for most businesses, the punishment does not end once the case is over. These consequences will often carry over into the business’ finances, generally through paying off fines and possibly closing the business for a certain amount of time.

For employees who are undocumented, their immigration privileges are at risk. In addition to deportation, they may lose the chance to apply for citizenship or for adjustment of status (“AOS”) in order to become a lawful permanent resident of the United States. This will be further discussed below.

If you are an employer, it is imperative that you adhere to the requirements of Form I-9, and follow-through with the submission process. Form I-9 is the single most important employee documentation, and will support your interests in case of an audit.

You should also thoroughly familiarize yourself with other acceptable documentation, such as knowing the security measures in place for passports, birth certificates, social security cards, and driver’s licenses. If a stamp or seal looks out of place, it could be a fake document; as such, it is much better for you to catch the fraudulent document before the government does.

If you are an employee, it is in your best interest to submit all documentation that is requested for employment. If you do not have what is being requested, speak with an employment attorney for guidance.

Civil fines are common, and criminal penalties may be issued if there is a pattern of violations. Other penalties may include:

  • Employers being barred from government contracts;
  • In cases of discrimination, a court order may be issued for the payment of back pay, or requiring the employer to hire the person who was discriminated against;
  • Loss of employment; and/or
  • Incarceration.

For employers who are required to utilize the E-Verify system, failure to do so may result in disciplinary action such as revocation of the employer’s business operating license. If caught, employers who hire undocumented workers will be held accountable.

What Should I Know About Adjustment Of Status?

Adjustment of status is a procedure by which foreign nationals who are already living in the U.S. may apply for Lawful Permanent Resident status. This status is generally applied for by someone who is in the U.S. illegally, including having overstayed their visa. Adjustment of status allows them to apply for a green card without having to return to their country of origin and restart the residency application process.

There are numerous categories of those who are eligible to apply for adjustment status. Some of these categories are:

  • Someone who came to the U.S. on a work visa and is being sponsored for a green card;
  • Someone who came to the U.S. with a visa to visit their fiancé, and who married their fiancé before their visa expired; and
  • Someone who received asylum in the U.S.

The following are some of the categories of people who are considered to be ineligible:

  • Someone who entered the U.S., in transit, without a visa;
  • Someone who entered the U.S. without being inspected and admitted by an immigration officer;
  • Someone who entered on a visa waiver, from a country that has a visa waiver agreement with the U.S.; and/or
  • Someone who has worked in the U.S. while here illegally.

In some cases, even if a person falls into one of the ineligibility categories, they can apply for adjustment of status due to their connection to someone in the U.S. An example of this would be how a person who has an immediate relative who is a U.S. citizen can still be eligible.

Form I-485, as well as other forms and documentation will likely be required, including:

  • A medical exam certificate;
  • Passport-style color photos; and
  • Any necessary fees.

The applicant must also provide proof of their eligibility for permanent resident status, such as the certificate from their marriage to a U.S. citizen.

Do I Need A Lawyer For Help With Understanding Employee Documentation?

An employment lawyer in your area can advise you of the employment laws in your jurisdiction, as well as provide guidance for keeping your business compliant.

An experienced employment attorney will also be able to represent you in court, as needed, should you find yourself in violation of employee documentation laws.

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