I. Employer Compliance with Immigration Laws

Every employer in the United States is required to be familiar with the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USUSCIS) requirements for establishing the work eligibility of their employees.

Each person employed in the United States by an organization with more than three employees is required to complete an I-9 form certifying they have reviewed documentation establishing either the U.S. citizenship or work eligibility of the employee pursuant to some visa or other immigration program. The I-9 program is usually viewed by employers as another government distraction and annoyance until the day they receive notice of a Department of Labor audit of their records. With three days' notice, the Department of Labor is permitted to conduct an audit of the I-9 files and directly related documents, if any, used in verifying the identity and work eligibility of workers in the United States.

What is on the surface a simple form to complete can often result in significant liability for even well-meaning employers. Improper completion of the form itself is considered a violation of federal law, such that a corporation can be fined up to $2,000 per employee just for having incorrectly filled out the form. If an employer has hired an individual which they knew or should have know was not authorized to work in the United States, the initial maximum fine is $2,000 per worker. This rises to $5,000 for a second offense and up to $10,000 per worker for a third offense.

Our Immigration Section is available to assist you in setting up a system that will be compliant with the Department of Labor regulations for I-9 forms and to provide you with tips to ensure that only the necessary documentation is present to be reviewed by the Department of Labor or Immigration Service investigators. Only certain documents can be obtained by the government agencies without a search warrant, and one of the common errors by employers is to lump together all employee-related information in one human resource file. This gives the government unnecessary access to your employees' personal records and could lead to liability for the company which might not otherwise exist if an appropriately segregated record system is established.

Our professionals can also assist your business by advising upon or performing an audit of your current I-9 record keeping process to ensure that it is in compliance with Department of Labor regulations prior to a Department of Labor notice and inspection. We can also advise the company, depending on its work base, whether maintenance of the underlying documentation to substantiate the work eligibility of a given worker is advisable under the particular circumstances.

Back

Please contact Craig Trebilcock at Shumaker Williams for further details.