WORKPLACE LAW -
Employment Authorization Documents
Question:
I am a new human resources/payroll manager. I was reviewing some of the company’s personnel files and noticed that some of our workers have expired work authorization forms. What should I do now?
Answer:
In this situation, the law requires the employer to re-verify the employee’s work authorization before it expires. The Immigration and Nationality Act makes it unlawful after November 6, 1986 to hire an alien for employment in the United States or to continue to employ an alien hired after that date knowing the alien is or has become unauthorized for employment. This Act also imposes an affirmative duty upon employers to prepare and retain certain forms for employees hired after November 6, 1986, and to make those forms available for inspection by INS officers. A violation of the first of these prohibitions is commonly referred to as a “knowing hire,” and of the second as a “paperwork violation.” Each failure to properly prepare, retain, or produce the forms in accordance with the employment verification system is a separate violation of the Act.
All U.S. employers are required to complete and retain Form I-9 for each individual they hire for employment in the United States. The I-9 form must be completed for citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9.
Some work authorization documents are issued for a limited period of time, including L-1, H-1B, and F-1 student authorization documents. If an employee has a time-limited work authorization, the employment authorization must be re-verified before the expiration date in order to continue to employ the person, or the employer may be subject to a “knowing hire” violation. Re-verification must occur no later than the date the work authorization expires. The employee must present a document that shows either an extension of the employee’s initial employment authorization, or a new work authorization. The I-9 form has an “updating and reverification” section to complete when reverifying the work eligibility of your employees. The U.S. Citizenship and Immigration Services recommends calendaring the expiration date six months before it expires to allow employees sufficient time to obtain renewed work authorizations.
The U.S. Immigration and Customs Enforcement has increased its enforcement efforts against employers. Julie L. Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement emphasized workplace enforcement recently, stating, “ Arrests resulting from work-site enforcement actions have risen substantially to 716 in 2006. Administrative arrests have increased dramatically to 3,667 in 2006. And using our asset forfeiture authorities, we’ve already seized $29 million from corrupt employers this year. Compare that with the only $72,585 collected in 2002 by the former INS using the administrative fine process.” Ms. Meyers told CNN, “We are turning away from focusing only on civil liability. We are now focusing on criminal cases and bringing as many criminal charges as we can when we find employers that blatantly violate worksite enforcement laws.”
These statistics highlight the importance of making sure your employees provide documentation to re-verify their status. There is no "safe harbor" for the employee to provide proof that he/she has applied for the extension. This is why it is critical to re-verify the employee’s work authorization before it expires. For a first offense, the minimum penalty is $250 and the maximum is $2000 for each unauthorized alien. The penalties increase for subsequent offenses.
Additional information about employer’s obligations concerning the I-9 and verification of worker status can be obtained from the Handbook for Employers that is posted on the U.S. Citizenship and Immigration Services web site. Go to uscis.gov and click on the “for employers” tab.
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