Since enactment of the 1986 Immigration Reform and Control Act ("IRCA") the hiring or continued employment of aliens whom employers know are not authorized to work legally in the United States is prohibited by federal law. IRCA requires employers to verify the identity and work authorization or eligibility of all individuals, whether U.S.- or foreign-born hired after November 6, 1986.

Pre-screening for unauthorized employment status is not allowed. New hires must certify in writing on the form I-9 their employment status no later than the first day of employment. Employers must review documents submitted by the new hires as proof of employment eligibility within three days following actual commencement of employment and complete Employment Eligibility Verification Forms I-9 to memorialize the results. Employers must produced the forms as lawfully required, but they are retained by the employer and not filed with the government. The forms must be retained for three years after the date of hire or one year after termination.

On November 7, 2007, the USCIS announced that a revised I-9 form was available. It implements removal of five documents for proof of both identity and employment eligibility that had been previously authorized for this purpose. They include: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); the old Alien Registration Receipt Card (Form I-151); the Reentry Permit (Form I-327); and the Refugee Travel Document (Form I-571).

On December 18, 2008, the USCIS published an interim rule with an effective date of February 2, 2009 that removes other documents from the list of acceptable documents that an employee can show to verify employment eligibility. These are: any expired document, including an expired U.S. passport and any expired List B document that was previously acceptable; Form I-688, temporary resident alien card; forms I-688A and I-688B, employment authorization cards, since these are no longer issued and all existing versions have expired. Documents that have been added to the list include certain passports from the Federated States of Micronesia and the Republic of the Marshall Islands. Other technical changes have been made that do not affect the substance of the I-9 process. View the DHS interim rule with all the changes to the Form I-9 list of acceptable documents.

The I-9 employment verification requirements has been criticized as unfortunate because they create a "don't ask, don't tell" dilemna for employers with twin risks arising from either overly-aggressive attempts to uncover unauthorized employment or lax attitudes towards it.

I. The U.S. Department of Homeland Security ("DHS") is charged with enforcing laws against unauthorized employment and the Immigration and Customs Enforcement Agency ("ICE") increasingly conducts raids of suspected non-compliant businesses. Employers can also be audited for compliance with paperwork and related requirements. Hearings are conducted before an Administrative Law Judge or federal court depending on the seriousness of the offense charged.

Penalties can be both civil and criminal. Pending announced increases by approximately 25% announced by the U.S. Attorney General, they can include:

• Paperwork violations. Civil penalty of $110 to $1,100 per each deficient Form I-9.
• Knowing Hire or Continued Employ of Unauthorized Employees. Civil penalties of
• $275 to $2,200 (to increase up to $375 to $3,200) per employee for first violation
• $2,200 to $5,500 per employee for second violation
• $3,300 to $11,000 (scheduled to increase up to $16,000) per employee thereafter
• Arizona, with other states, has enacted additional state law penalties for knowingly or intentionally hiring or continuing to employ unauthorized employees. Please click here for more...
• Accepting fraudulent documents. Civil penalties may include:
• $250 to $2,000 per document for first-time violation
• $2,000 to $5,000 per document thereafter
• Violation of Verification Procedures. Civil penalty of $100 to $1,000 per violation
• Pattern of Knowing Hire or Continued Employ of Unauthorized Employees. Criminal penalties may include up to six months in jail and/or a fine of up to $3,000 per unauthorized employee.
• Harboring
• Up to five years imprisonment for knowingly hiring ten or more unauthorized employees in a twelve-month period with actual knowledge that they were brought into the United States illegally
• Up to ten years imprisonment for helping an unauthorized employee enter the country illegally or harboring aliens for commercial advantage or financial gain
• Potential civil penalities

II. The Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") in the U.S. Department of Justice ("DOJ"), is a completely different agency that investigates charges of discrimination arising out of employment eligibility verification practices, including employment referral for a fee. Employers who are determined by a special hearing officer to have unlawfully discriminated may be required to pay back wages and civil penalties and to hire or rehire workers.

OSC responsibilities include:

• Citizenship Status Discrimination. For business with four or more employees, unless otherwise required by law, regulation, or government contract, requiring U.S. citizenship or permanent resident status is prohibited; and refusing to hire asylees or refugees because employment authorization will end at a specific date in the future is unlawful.
• National Origin Discrimination. For employers with four to fourteen employees, it is unlawful under immigration law to treat workers differently because of their place of birth, country of origin, ancestry, native language, or accent. (Cases of employers with fifteen or more employees are referred to the US Equal Employment Opportunity Commission and may also include a private right of action).
• Unfair Documentary Practices. For business with four or more employees, specific combinations of documents can be supplied by new hires as proof of employment authorization, as set forth in government regulations and publications, and if a permissible combination is tendered of documents that appear to be reasonably valid on their face and relate to the employee, an employer cannot lawfully request additional documents, even to clarify matters. Thus, if for example an employee certifies that he or she has permanent residence status and tenders a driver's license and social security card but not the green card itself, it may be considered abusive for the employer to insist on seeing the green card and attempts to do so may result in governmental sanctions against the employer for document abuse. The new hires are given the choice over which acceptable Form I-9 documents to present, and not the employer.
• Retaliatory Discrimination. It is unlawful for an employer to intimidate, threaten, coerce, or retaliate against an employee who files a discrimination charge, testifies, or assists an investigation or hearing, or asserts other rights under law.

Since 2004, the Social Security Administration and the Department of Homeland Security have conducted a voluntary pilot program in all 50 states to grant access to governmental databases containing social security and alien identification numbers for quick confirmation of employment eligibility of new hires. Arizona recently passed a law making participation in the program mandatory for all Arizona employers as of January 1, 2008.

In 2006, DHS approved interim rules for the electronic generation, signature and storage of forms I-9, which is a useful feature that supplements the Basic Employment Eligibility Pilot Program, enabling paperless verification and compliance workflows.

In August 2007, DHS adopted a Safe Harbor "No-Match" Rule. Under the Rule, an employer who is notified that the name and social security number of an employee fail to match governmental records must take steps to rectify the mismatch within a limited timeframe or be considered as knowingly hiring an unauthorized employee, which carries a civil penalty. For more, click here.

A lawsuit was filed to contest the Safe Harbor "No-Match" Rule. For more about it and other E-Verify-related litigation, click here.

Family, Employment, Business Immigration Lawyer Tucson, Arizona

At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices for professional Arizona immigration attorney assistance.