10 tips for complying with immigration law when hiring staff

Navigating the waters of immigration law compliance can be tricky. Calvin Sun offers some practical advice to help you understand the issues and avoid possible penalties.

Recent events have highlighted the issues of employment and immigration. In particular, under the Immigration and Nationality Act, employers are prohibited from hiring "unauthorized aliens." To avoid possible civil and criminal penalties, as well as bad publicity, an understanding of employer responsibilities is crucial. The following tips aren't intended to be comprehensive and are not intended as legal advice. But they will help you reduce your risk of having immigration enforcement or other issues.

Note: This article is also available as a PDF download.

1: Hiring a citizen keeps you compliant

Hiring an alien for employment if you know that the alien is unauthorized is unlawful. The law defines an "unauthorized alien" as one who is not lawfully admitted for permanent residence or who is not authorized to be employed by either the INA or the Attorney General of the United States.

One way to avoid problems with the law is to hire a U.S. citizen. A U.S. citizen is not an alien, much less an unauthorized alien. However, be careful about how you determine whether a person is a citizen. Asking the wrong way could still get you in to trouble. (See below.)

2: Hiring an "authorized alien" keeps you compliant

Another way of avoiding problems with respect to unauthorized aliens is to hire authorized aliens. One type of authorized alien is the permanent resident -- the holder of the so-called "green card" (although they have not been green for many years).

Another group of authorized aliens are those who are in a status that allows them to work under certain conditions. For example, foreign students, in F-1 status, can work a limited number of hours. In these cases, such aliens should have form I-766, an employment authorization document (EAD).

A third group of authorized aliens may work without an EAD because of their particular non-immigrant status. Examples include those in H-1B status. Such aliens instead should have, and should present to you, a form I-94 or form I-94A, with an endorsement and reference to their status. The I-9 form and instructions will provide guidance and details in this regard.

Hiring one of these groups of aliens will keep you compliant. However, as with the U.S. citizen, be careful during the interview process of asking specifically about a person's status.

3: Avoid asking about citizenship or work status

Asking a job interviewee "Are you a citizen?" or "Are you a permanent resident?" is illegal and could get you into trouble -- not necessarily under immigration laws, but rather under civil rights and discrimination laws. See below for a suggested alternative.

4: Use an open-ended question to get the same information

Instead of leading the interviewee, you can be more general while still getting the needed information. Because all you care about is whether the person is legally able to work, the question you ask should simply be something such as "Are you legally able to work in the United States?"

5: Be aware of deadlines for completing the I-9

The I-9 form documents the evidence the new employee provided to show authorization to work, as well as the employer's actions in verifying that evidence. Normally, this form must be completed within the first three days of the employee's hire. However, if the employment is for less than three days, the form must be completed on the day of hire.

6: Distinguish between identity documents and work authorization documents

To validate an employee's ability to work, you must verify both the identity of the employee and the employee's legal ability to work. Different documents will serve both purposes, while others will serve only one or the other. Some documents, such as a U.S. passport, prove both identity and authorization to work. Other documents, such as a driver's license, prove identity but do not prove authorization to work. Still other documents, such as certain Social Security cards, prove authorization to work but do not prove identity. The I-9 instructions give further examples of each category.

Make sure that you are relying on current (i.e., unexpired) documents. Even though in the past, an expired U.S. passport might have been good for identification purposes, it is no longer the case for I-9 purposes. Also, check Social Security cards carefully. Some Social Security cards by themselves are valid for employment, such as those of a U.S. citizen. But others will require separate employment authorization from the U.S. Department of Homeland Security. In such cases, the card will have a notation to that effect.

7: Using E-Verify creates a helpful presumption

E-Verify is a Web-based system that allows employers to verify a person's employment eligibility. Enrolling in and using the system is free. Participation is voluntary, unless you as an employer receive certain federal contracts or fall into other specified categories. E-Verify is meant as a supplement to, rather than a replacement for, completion of the I-9.

If you do choose to use E-Verify, legally you will be presumed to have complied with I-9 requirements. In legal terms, your use of E-Verify creates a "rebuttable presumption of compliance." If the government later investigates, they have the burden of showing that you did not comply. You, on the other hand, don't have the burden of showing that you did comply.

8: E-Verify does not exempt you from workplace enforcement

Even if you use E-Verify, you still are subject to workplace enforcement, such as visits and inspections by government agencies. The use of E-Verify and its presumptions applies only to I-9 compliance, not workplace compliance.

9: Use E-Verify appropriately (if at all)

If you do use E-Verify, make sure you tell job candidates. Also, use E-Verify only after you have made a hiring decision. Using E-Verify as a screening tool for employment applicants is illegal and could result in your being barred from using the system. Also prohibited is the use of E-Verify with respect to your current employees.

In addition, if E-Verify reports a "tentative non-confirmation" (TNC) for a new hire -- meaning that the system found possible problems in verifying the person's eligibility -- and that person chooses to challenge or contest this TNC (which he or she is allowed to do), you as the employer can't take adverse actions against that person during the period of challenge. For example, you can't limit someone's employment or delay the date that he or she starts work.

10: Know retention requirements

Documentation regarding I-9 verification must be kept for certain minimum periods of time -- either for three years from the employee's date of hire or one year after the employee leaves, whichever is later.