Do’s and Don’ts of Employer Immigration Compliance

Immigration is a hot topic, one that nearly everyone has an opinion about and has argued over. Most of those arguments are about either “amnesty” or border enforcement. There is, in addition to these topics, a huge body of law relating to the employment of non-U.S. citizens – who, what, where and when they may be employed – and the responsibility of employers to verify the work authorization and identity of all new employees. These employer responsibilities are found in U.S. immigration law. In existence since 1986, the responsibilities have changed over time. Enforcement of them is a focus of the current administration; and Republican contenders for President state that they intend to crack down on employers who disregard them. The Obama administration has, in fact, been cracking down, resulting in a dramatic increase in the number of government audits of I-9 forms and fines of non-compliant employers totaling hundreds of thousands of dollars.

The following suggestions are directed at employers who have not been attentive to their immigration responsibilities and to employers who believe they are in compliance but actually are not, due to complacency and failure to keep up with regular changes to the requirements. The list is intended to be a reminder of a few basics of verification responsibilities and should not be relied upon as a comprehensive list of what to do and what not to do.

DO:

  • Complete the current version of the I-9 form for all new hires within required timeframes.
  • Colorado employers must complete an “Affirmation Form” for each new employee and attach required documents.
  • Retain forms and copied documents for the required periods and purge when the retention period is satisfied.
  • Audit I-9s at least annually to ensure that you are in compliance.
  • Designate one person, and a backup person, to be responsible for completing required forms and for keeping current on the ever-changing requirements.
  • Keep handy, and refer to, the United States Citizenship and Immigration Services (“USCIS”) publication, “Handbook for Employers.”
  • Educate yourself about the process using on-line sources, including the USCIS website, and/or by consulting with an immigration attorney.

DON’T:

  • Assume that the employment verification responsibilities involve only the completion of a simple form.
  • Require new employees to produce specific documents for I-9 purposes.
  • Rely on untrained employees to manage the I-9 process.
  • Fail to complete I-9 forms for those employees who are United States citizens.
  • Use outdated I-9 forms or rely on an outdated Handbook.
  • Retain I-9 documentation in the same files that contain general personnel information.
  • Use the verification process as a means of pre-screening employees.

This article is intended to provide general information and should not be relied upon as legal advice applicable to all facts and circumstances.