Labor and Employment Law blog

Frequently Asked Questions About Immigration Laws

Last fall we wrote an article on Immigration laws that listed a few frequently asked questions. With immigration issues still remaining a hot button and likely a major political issue in the presidential election, here are some other frequently asked questions (with answers) about immigration laws you might want to become familiar with.

Q. What should an employer do if the person hired is unable to provide the required immigration documents within three business days of the date employment begins? A. If an employee is unable to present the required documents, the employee must produce a receipt showing that he or she has applied for the document(s). In addition, the employee must present the actual document within 90 days of the hire.

Q. Can an employer terminate an employee who fails to produce the required documents within three business days? A. Yes. An employer can terminate an employee who fails to produce the required document or a receipt for a document within three business days from the date employment begins. However, an employer must apply these practices uniformly to all employees.

Q. What is an employer's responsibility concerning the authenticity of document(s) presented? A. An employer must examine the document(s) and, if they reasonably apear to be genuine and to relate to the person presenting them, accept them. To do otherwise could be an unfair immigration-related employment practice.

Q. What are the requirements for retaining I-9 forms? A. An employer must retain the I-9 for 3 years after the date employment begins or 1 year after the date the person's employment is terminated, whichever is later.

As stated in our earlier article, all employers must verify that every new hire is either a U.S. citizen or authorized to work in the country. Requesting, photocopying and maintaining copies of such documents as U.S. passport or an unexpired foreign passport authorizing U.S. employment, a resident alien card (commonly call a "green card"), social security card and drivers license is a good practice and can be used in a defense of a claim violation.

If you are searching for a comprehensive Website that covers immigration issues and laws, we suggest you check out megalaw.com. This site contains numerous links - all involving immigration.

Some Facts About Immigration Laws

With all the employment issues surfacing about immigration, it might be wise for companies to review their immigration practices to ensure that they do not fall victim to employing an immigrant illegally. Here are a few things you may want to consider.

All employers must verify that every new hire is either a U.S. citizen or authorized to work in the country. As a defense to a claim of violation, the employer should require of every new hire:

1. birth or naturalization certificate
2. U. S. Passport or an unexpired foreign passport authorizing U.S. employment
3. or a resident alien card containing the new hire's identification and U.S. employment authorization (the "green card")

In the absense of any of those, the employer should require two documents: a Social Security Card and driver's license or similar state certification. The employer should photocopy any such documents and keep them on file.

Here are just a few frequently asked questions about immigration laws:

Do citizens and nationals of the United States need to prove they are eligible to work?  Yes. While citizens and nationals of the U.S. are automatically eligible for employment, they to must present the required documents and complete an I-9 Form.

Does an employer need to complete an I-9 for everyone who applies for a job? No. An employer needs to complete I-9's only for people actually hired.

If someone accepts a job but will not start work for a month, can an employers complete the I-9 when the employee accepts the job? No. The law requires that an employer complete the I-9 only when the person actually begins working.

Does an employer need to fill out an I-9 for independent contractors or their employees? No. The contracting company is responsible for completing I-9's.

May an employer accept a photocopy of a document presented by an employee? No. Employees must present original documents. The only exception is that an employee may present a certified copy of a birth certificate.

It is probably wise that companies assign immigration law compliance to one person or one department (most likely the human resource department). Not doing so could result in failure to obtain the correct documents and/or receipt of documents, failure to maintain proper records for the prescribed length of time and difficulty in producing the appropriate documents should an issue or claim be raised.