Immigration has become a “hot topic” over the past months and years. Choice of where to live and where to work are basic values upon which the United States of America was founded. Rules and laws to control and manage immigration, citizenship and work by foreign nationals have evolved over the years. Illegal immigration, in particular, has been a recent political and social issue.
The Immigration and Nationality Act (the “Act”) is the basic body of federal law concerning immigration. Initially adopted in 1952, the Act replaced several disparate laws concerning immigration. The Act encompasses issues of naturalization, citizenship and immigration, whether or not related to employment.
Employers are generally affected by the Act in one of two ways: (1) compliance with employment verification requirements and non-discrimination laws imposed by the Act, or (2) when hiring a foreign national to perform services for the Employer. The focus of this paper is upon on employer’s verification of employment and non-discrimination requirements imposed by the Act. Important non-employment immigration, citizenship and naturalization issues are beyond the scope of this paper. This paper only briefly and generally touches on the extensive body of law and regulatory requirements governing the hiring of foreign nation employee.
An employer’s legal obligations were added to the Act as part of the Immigration Reform and Control Act of 1986. Section 274A of the Act was adopted to impose requirements affecting employers.
The basic legal requirement is that it is unlawful to hire for employment in the United States an alien knowing the alien is unauthorized with respect to employment or without complying with the employment verification requirements imposed by the Act. It is also unlawful for an employer to continue to employ an alien knowing the person is or has become an unauthorized alien with respect to employment.
Actual knowledge of an employer of the unauthorized status is not the only way to establish “knowing.” An employer may become aware of the unauthorized status of an employee from any source. Constructive knowledge may include, but is not limited to, situations where an employer: (1) fails to complete or improperly completes the Form I-9; (2) has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or (3) acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.
Form I-9 is the employment verification form used for compliance with the Act. Non-compliance by employers with the Form I-9 requirements is a violation of the Act.
Violations and Penalties
The Department of Homeland Security, U.S. Immigration and Customs Enforcement may investigate to determine whether an employer is knowingly employing unauthorized aliens or failing to maintain proper documentation. Depending on the results of the investigation, the governmental agency may elect to issue a Warning Notice, a letter notifying the employer of technical or procedural failure to correct, or a Notice of Intent to Fine. Within thirty (30) days of the date of receipt of a Notice of Intent to Fine, the employer may request an administrative hearing before the Office of the Chief Administrative Hearing Officer, Executive Office for Immigration Review, U.S. Department of Justice.
Violations of the Act for knowingly hiring or continuing to hire unauthorized aliens subject employers to civil penalties of between $250 and $2,000 per unauthorized alien. Civil penalties increase if the employer was subject to one or more prior cease and desist orders. The criminal penalty, for a pattern or practice of violations, is a fine of not more than $3,000 per unauthorized alien. Jail time is also a possibility. The Act provides for imprisonment for not more than six months for the entire pattern or practice of violations.
Employers who fail to properly complete, retain, or present Forms I-9 as required by law may also be subject to a civil penalty. Among the factors considered in determining the amount of the penalty are the size of the business, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and history of previous violations.
Definition of “Unauthorized Alien”
An unauthorized alien is (1) an alien not lawfully admitted to the United States for permanent resident, or (2) an alien not authorized to be employed by the Act or the Attorney General. An “alien” is any person not a citizen or national of the United States.
Employer’s Good Faith Defenses
Proper compliance by the employer with Form I-9 requirements rebuts the presumption that the employer “knowingly” hired or continued to employ unauthorized aliens. Compliance with the Form I-9 requirements establishes the “good faith” of the employer to violations of the Act. Good faith compliance is required to avoid the Act’s penalties.
A good faith verification process is established by the following elements:
Proper completion by employee of Section 1 of Form I-9 when employment begins, included review of the provided documents, which should have reasonably appeared to have been genuine and related to the person presenting the documents;
full and proper completion of Section 2 of Form I-9;
retention of Form I-9 for the required time; and
Availability of Forms I-9 to appropriate governmental authorities.
Section 1 of Form I-9 must be completed within three business days of the date an employee is hired.
There is no private right of action by an employee for any employer’s alleged violation of the verification requirements.
Issues with Documents
The employee is entitled to select the documents to be produced. List A establishes identity and authorization to work, List B establishes identity only and List C establishes authorization to work only. An employer should not require or prefer certain documents. If the employee fails to produce the documents within three business days, the employee may be terminated. If the employee produces a replacement receipt for lost or stolen documents, the replacement receipt will suffice for a period of ninety (90) days.
The employer must review original documents produced by the employee, except a certified copy of the birth certificate is acceptable. The employer may copy the documents presented. A policy of copying documents should be uniform and applied to all employees.
In Denardo v. WH Smith USA Travel,1 the employee presented an expired United States passport. The employee, initially allowed to work, was fired for failing to provide the passport to be copied. Evidenced showed the employer had a written and uniform policy requiring copies of supporting documentation which was communicated to the employee. The Administrative Law Judge stated a copy was not required by law, but there was no prohibition upon requiring a copy of the documents provided.
A copying policy can provide support for the good faith of employer and avoid the “technical or procedural” verification violations for failure to properly transcribe the document title, identification number and expiration dates.2 An Administrative Law Judge held a copying policy did not violate the Act. Further, the termination of the employee for failure to comply with the policy, which was non-discriminatory on its face and uniformly applied, was not discrimination under the Act.
Employment documents which do not reasonably appear to be genuine do not establish good faith defense. In Collins Foods3, the employer examined a genuine driver’s license and a fake Social Security card. The Administrative Law Judge found the employer did not act reasonably in verifying the Social Security card because the employer did not compare the back of the Social Security card with the example in the INS Handbook. On appeal, the Court reversed, finding that nothing in the statute required a comparison with the INS Handbook. Further, the Court held the examples were not so different from the fake Social Security cards that the employer is under no requirement to become an expert in employee authorization documents.
An employer may be presented with restricted Social Security cards. The following restrictions on a social security card cause the document to not satisfy Form I-9 requirements:
“Valid only with INS (or DHS) Authorization”
“Not Valid for Employment”
Internal Revenue Service Individual Taxpayer Identification Numbers are not proper employment eligibility verification.
If the employee presents documents which appeared to be genuine and the employer learns that the employee is not actually authorized to work, the employer should question the employee and present another opportunity to present Form I-9 documents. If the employee is unable to provide proper documentation, the employee should be terminated.
Basic Pilot Employment Verification Program
Employers may register for the Basic Pilot Employment Verification Program to verify whether employees are eligible to work in the United States. An employee must first register at https://www.vis.dhs.com/EmployerRegistration. The program lets an employer enter the information from Form I-9 into a search database to verify eligibility to work.
Retention of Forms I-9
Employers must maintain Forms I-9 for a period of three years following the hire date or one year following the termination date, whichever is later. A current issue is whether electronic storage is permissible.
There are baseline standards for electronic storage set by certain governmental agencies. Two important government agencies, the Bureau of Immigration and Customs Enforcement and the Internal Revenue Service, have adopted consistent standards. Generally, employers may scan and store Form I-9s with an electronic storage system which meets the following requirements:
Reasonable controls to ensure the integrity, accuracy and reliability or the storage system;
Reasonable controls to prevent and detect the unauthorized or accidental creation, addition of, deletion from, or deterioration of, stored documents;
An inspection and quality assumed program evidenced by regular evaluations of the system;
Ability to reproduce legible and readable hard copies (further defined as permitting identification of all letters and numbers positively and quickly to the exclusion of other numbers, letters or words); and
The person retaining the records or electronic format must maintain a complete description of the electronic storage system, including procedures for its use and the inflexing system.
The system storage system cannot be subject to any license or contract which restricts or limits the access or use of the system by an agency of the United States. At the time of inspection by a governmental agency, the employer must be able to:
Retrieve and produce the document (such as the form I-9) and a record of who has had access to the system and actions performed within the computer system’
Provide the resources (hardware, software and documentation) for an agency personnel to locate, reproduce, and review the audit trail of the document stored and supporting documentary; and
Provide a spreadsheet of all information fields.
The system must be secured to: (1) allow access only by authorized personnel; (2) provide backup and recovery of records; (3) provide training for employees to avoid unauthorized or accidental alteration; or (4) create a record of when the documents were scanned, viewed, updated, accessed as created, the action taken and the person who took the action.
The Act prohibits discrimination by an employer (with four or more employees) in hiring, discharging, or recruiting because of a person’s national origin or citizenship status. Violation of the non-discrimination prohibition may be enforced by private action.
Employers avoid discriminating against persons by establishing a program of Form I-9 compliance which:
Treats all employees the same when completing Form I-9;
Does not set different employment eligibility verification standards by different groups of employees;
Does not require different documents be presented by different groups of employees. Employees should choose the documents to produce.
Does not permit the employer to request or require more or different documents than the employee wishes to provide.
Employers cannot limit jobs to United States citizens unless required by law, regulation or Executive Order, required by federal, state or local governmental contract, or required by the Attorney General.
Because discrimination is an intentional act, the employer must know of the citizenship of national origin of the employee to discriminate based on those reasons.4 An employer should not have questions on an application which requires identification of national origin or citizenship of an applicant. An employer must avoid taking any adverse employment action based on the citizenship or national original of the employee. There is no prohibition against terminating the employment of an unauthorized alien. Indeed, the Act requires an employer to discriminate against unauthorized aliens by refusing to hire them.5
An employer may adopt a policy which subjects an employee to termination if the employee provided false or fraudulent documentation as part of the application or employment process. Uniformly applied, such a policy does not constitute discrimination under the Act.
Hiring a Foreign National for Employment
An employer may seek to hire foreign nationals as immigrants or as non-immigrants. A person is an immigrant if authorized to live and work permanently in the United States. Immigration status may be based on an employment opportunity in this country. Immigration through employment is a multi-step process.
An employer seeking to participate in the immigration of an employee should carefully review the application process and the circumstances of the employee. The employer and potential employee must first determine that the foreign national is eligible under one of the four available categories for granting permanent residence based on employment. The categories are:
EB-1 Priority workers:
Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics
Foreign nationals that are outstanding professors or researchers
Foreign nationals that are managers and executives subject to international transfer to the United States
EB-2 Professionals with advanced degrees or persons with exceptional ability:
Foreign nationals of exceptional ability in the sciences, arts or business
Foreign nationals that are advanced degree professionals
Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved.
EB-3 Skilled or professional workers
Foreign national professionals with bachelor’s degrees (not qualifying for a higher preference category)
Foreign national skilled workers (minimum two years training and experience)
Foreign national unskilled workers
EB-4 Special Immigrants
Foreign national religious workers
Employees and former employees of the U.S. Government abroad
Most categories require the employee to complete Form ETA 750 and submit it for approval to the United States Department of Labor. After approval is obtained, the United States Citizenship and Immigration Service will approve a Form I-140, Petition for Alien Worker. The employer acts as the sponsor of the employee.
Then, the State Department must give the employee an immigrant visa number. After the visa number becomes available, the applicant must apply to adjust to permanent resident status.
The second method for an employer to hire a foreign national as an employee is on a non-immigrant, or non-permanent, basis. There are approximately 79 non-immigrant visa classifications. Two common non-immigrant employment classifications are Class H-1B (specialized fields such as education, scientists, engineers, or computer programmers) and Class H-2B (temporary workers performing other services or labor). For most classifications, the employer must file a Form I-129, Petition for a Non-Immigrant Worker. Detailed discussion of visa applications and processes is beyond the scope of this paper.
1 OCAHO Case No. 02B00011, 9 OCAHO no 1080, 2002 OCAHO 3 (July 25, 2002).