Do You Employ Foreign Workers ?

By J Craig Fong*

Alien workers help small businesses toward profitability. Most are reliable people who work hard for their wages. However, employers must take care that employment of an alien worker does not expose the company to sanction by the CIS (US Citizenship and Immigration Services).

It is illegal to hire undocumented workers

Prior to the 1986 enactment of the Immigration Reform and Control Act (IRCA), employers in the US could freely hire undocumented workers. IRCA now makes it illegal for employers knowingly to hire aliens who are unauthorized to work, or to continue to employ aliens who they know have become unauthorized to work. Employers are subject to civil and/or criminal fines for violation of this law. Employers are required to verify on CIS Form I-9 [Employment Eligibility Verification], and attest under penalty of perjury, that a job applicant is authorized to work in the US. The employer must also verify the identity of the applicant and maintain records for three years or longer.

Filling out the I-9

Employers must use Form I-9 to verify the identity and right to work in the US of all employees hired after 1 September 1987. I-9 Verification does not have to be completed for independent contractors or casual employees. Many documents can be used to verify identity and work authorization, including a US passport, birth certificate , state-issued identification card or driver's license, social security card, temporary resident card, CIS-issued employment authorization card, and resident alien card (this is the so-called "green card.")

A more thorough list of acceptable documents is set forth on the Form I-9.The law does not require employers to be forensic document experts or INS agents. If a reasonable person would think the card or document appears genuine, the document can be used for the I-9 Verification. Employees may submit whichever documents they choose; employers are prohibited from specifying which documents are acceptable. The employer is required to certify under penalty of perjury that she or he has looked at the originals of the documents presented, that the documents appear genuine, that the documents relate to the person named, and that, to the best of the employer's knowledge, the individual is eligible to work in the USA.

Employment Discrimination

IRCA makes it an unfair immigration-related employment practice for employers of four or more employees to discriminate against an individual on account of national origin or US citizenship. In 1992, one employer who refused to accept a social security card and state identification from an alien whose temporary resident card had expired was found to have committed an unfair immigration related employment practice, despite the fact that the company claimed to have acted in good faith and in reliance on the CIS Handbook for Employers.

If you have questions about filling out I-9 Verification or IRCA record-keeping requirements, if you would like to help an employee his/her status, or if you wish to obtain a worker visa for a potential employee, please do not hesitate to contact the office.

* J Craig Fong is a partner of the Los Angeles law firm Fong and Chun LLP. He is an attorney with more than twenty years of experience. Admitted to practice in California, Illinois, and before the Supreme Court of the United States, his immigration law practice focuses on family immigration, employment-based immigration, HIV and sexual orientation-related asylum, and US-Canada relocation issues. website: www.fongandchun.com