Thursday, September 6, 2012

How does an employer know whether an applicant for employment is legal and eligible for work?

Ask the Expert

First in a series of labor related questions answered by Attorney Denise Anderson.

How does an employer know whether an applicant for employment is legal and eligible for work?  What happens to the employer if she hires an employee who is not eligible for work? 

All employers are governed by the Immigration and Nationality Act (“INA”).  Under the INA, employers may hire only persons who may legally work in the United States; either U.S. citizens or foreign citizens who have the necessary authorization.  Employers must verify the identity and employment eligibility of anyone to be hired by completing Form I-9, which lists the documents an employee must present. 

Employers may not require an employee to present a specific document and must accept the documents the new employee chooses to present as long as they appear to be genuine and relate to the person presenting them.  Otherwise, employers may violate federal law prohibiting discrimination in the verification process.  An employee who fails to produce the required document, or a receipt for a replacement of the document, within three business days of the date employment begins, may be terminated.  

An employee who shows a receipt has 90 days to present the original documents.  Employers must keep each I-9 for three years or one year after employment end, whichever is longer.  The U.S. Immigration and Customs Enforcement (“ICE”) conducts routine workplace audits to endure that employers are properly completing and retaining I-9 forms. 

During the application process, employers are required to ask of all applicants (1) whether the applicant is legally eligible to work in the United States and (2) whether the applicant will now or in the future require visa sponsorship for employment.  If the applicant answers “No” to the second question or both questions, she is not eligible to work.  If the applicant answers “Yes” to the second question or both questions, employers may ask further questions about immigration status without risking liability or a discrimination charge. 

Employers can use information taken from the I-9 to verify electronically the employment eligibility of newly hired employees through E-Verify.  E-Verify is free and, in order to use its data base, employers need to enroll by providing basic information about their business. 
When employers send an employee’s W-2 form to the Social Security Administration (“SSA”), the employee’s name and Social Security number are checked against SSA records.  ICE will also verify the accuracy of information on I-9 forms.  If either agency cannot verify the information, a no-match letter will be sent to the employer indicating the employee’s name or Social Security number did not match government records. 

Employers who receive a “no-match” letter must avoid taking immediate adverse action against the employee.  Firing an employee solely on the basis of a no-match letter risks a discrimination lawsuit.  Rather, employers must follow up on the no-match letter in a timely manner or be cited for knowingly employing an unauthorized worker.  Employers are not required to resolve discrepancies but must check their records for errors, inform the employee of the no-match letter and ask the employee to review the information.  Employers who fail to respond timely to the no-match letter may be considered to have had constructive knowledge that the employee is not authorized to work in the United States and therefore subject to criminal prosecution and/or fines.

Please stay tuned for the next pieces in our series.

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