Verification Of Employment Eligibility 2009

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Verification of Employment Eligibility

Employer Responsibilities, Employee Rights and Government Enforcement

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Topics:

– Employment of unauthorized aliens

– Who is authorized for employment

– Verification of employment eligibility

– Anti-discrimination protections

– Enforcement

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Introduction

– April 20, 2006, DHS unveiled US immigration enforcement strategy– Stated goal: “build strong worksite enforcement and compliance

programs to deter illegal employment in this country.”– Relationship to immigration debate and proposed legislation

– Increased enforcement activity– More use of criminal sanctions and raids

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Legal Authorities

– Immigration Reform and Control Act of 1986, 8 USC 1324a and b

– 8 CFR Part 274a and 274b

– Immigration and Customs Enforcement, www.ice.gov

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Employment of unauthorized aliens

– Unlawful to hire, recruit or refer for a fee, or continue to employ, an alien knowing the alien is unauthorized for such employment

– I-9 compliance in good faith is a defense

– Enrollment in E-Verify is good faith compliance

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Key terms, defined

– Hire – actual commencement of employment for compensation– Employment – service performed in the US, except sporadic domestic

service in private home– Employer – person or entity who engages the services of an employee

to be performed in the US in return for compensation.

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Genius Question #1.

– Can the relationship be structured like an independent contractor to avoid this rule?

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Use of Labor thru Contract

– Treated like an employer if knew the alien was unauthorized to perform such labor or services

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Who is authorized for employment

– See 8 CFR 274a.12

– (a) Authorized incident to status (e.g., resident alien)

– (b) Authorized for a specific employer incident to status (e.g., H-1B nonimmigrant)

– (c) Must apply (e.g., F-1 student OPT)

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Verification of employment eligibility

– Within 3 days of hire, employer must complete and retain record of verifying the identity and employment eligibility of the employee on Form I-9

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Records Retention

Retain Form I-9 (supporting documents optional) for the later of:

– 3 years after date of hire; or

– 1 year after termination

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Employee completes Form I-9, Section 1, showing:

– US citizen

– Permanent resident; or

– other

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Employer completes Form I-9, Section 2, showing review of:

– List A document showing both; or

– List B and List C document showing identity and employment eligibility

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– Publication M-274 and the reverse side of Form I-9 show acceptable documents

– Employee, not employer, chooses document(s) from list

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Genius Question #2

– I don’t really have to do the Form I-9 for the Americans, do I?

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Anti-discrimination protections

– Employers at least 4 employees are prohibited from discrimination against any person (other than an alien) in hiring, discharging, recruiting or referring for a fee because of national origin or citizenship

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Anti-discrimination protections

– Employers at least 15 employees are prohibited from discrimination against any person in hiring, discharging, recruiting, referring for a fee, recruiting, assigning, compensating or other terms and conditions of employment because of national origin or citizenship

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Anti-discrimination Exceptions

– Citizenship discrimination permitted except against US lawful permanent residents, refugees and asylees

– Unless they fail to apply for US citizenship on a timely basis; or

– Unless they fail to become a US citizen within 2 years

– Not counting time for slow government processing

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Anti-discrimination Exceptions

– Discrimination permitted when required by law, regulation, executive order, contract (by Federal, state or local government), or when US citizenship is determined by the Attorney General as essential for doing business with a government agency

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Genius question 3

– The government never enforces these rules, do they?

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Enforcement

– Criminal penalties for pattern or practice of violating unlawful employment rule

– Up to $3,000/unauthorized alien;

– Up to 6 months jail; or

– both

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Enforcement

– Civil penalties/unauthorized alien

– Cease and desist order’

– Fine

– First offense $275-$2,200

– Second offense $2,200-$5,000

– More than 2 offenses $3,000-$10,000

– Other appropriate remedial action

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Questions and Answers

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For more information

C. Matthew SchulzBaker & McKenzie LLP

660 Hansen Way

Palo Alto, CA 94304 USA

Tel +1 650 856 5528

Fax +1 650 856 9299

matthew.schulz@bakernet.com

www.bakerimmigration.com