Under the Immigration and Nationality Act (“INA”), it is unlawful for an employer to knowingly recruit, hire or continue to employ an alien who is not authorized to work in the United States.  The Immigration Reform and Control Act of 1986 (“IRCA”) requires employers to examine documents presented by new hires to verify identity and work eligibility and to complete and retain the Form I-9.

Complying with IRCA has become increasingly more difficult for employers given the renewed legislative focus on immigration reform and attention to criminal enforcement of the IRCA, post-9/11.  One area that deserves increased attention involves verifying employment authorization of workers hired.

U.S. employers are required by law to verify the employment authorization of all workers they hire, regardless of the workers’ immigration status.  Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties. 

Form I-9, Employment Eligibility Verification, must be completed for each newly hired employee, including U.S. citizens, permanent residents, and temporary foreign workers, to demonstrate the employer’s compliance with the law and the employee’s work authorization.  Through the Form I-9 verification process, employers ensure that employees possess proper authorization to work in the United States and that hiring practices do not unlawfully discriminate based on immigration status.

Effective April 3, 2009, employers must use the revised I-9 form.   U.S. Citizenship and Immigration Services (USCIS) published an interim final rule that narrows the list of documents employers may accept to verify employment.  Employers are now required to use only the new form to verify the employment eligibility of new hires and reverify existing employees where necessary.  USCIS has published a final version of the Form I-9.  Employers may download the new form here: http://www.uscis.gov/files/form/i-9.pdf.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

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