There are two facets of immigration law that all businesses should be aware of. The first is the obligation to document the work authorization and identity of all employees, regardless of whether they appear to be foreign born. The second is the related process of seeking work authorization from the Department of Homeland Security (DHS) suitable for your particular organization for those persons who are neither citizens or green card holders.
Obviously, the process starts with the employment application. Employers may ask, on the application, whether the employee is authorized to work in the United States. It should be noted that if the company does not want to go through the process of petitioning for work authorization for employees not already authorized, it is not required to do so.
Form I-9, a new version of which went into effect May 7, 2013, must be completed for all incoming employees if you have four or more employees working for your company. Section 1 has to be filled out completely by the employee, although a translator box is available should they need help. Section 2 should be filled out by the employer using documents of the employee’s choice. Although Section 1 should be filled out the first day of employment, Section 3 must be filled out within the first three days of employment, and a good rule of thumb is to fill out the entire document the first day. Review all the boxes to make sure the form is completely filled out, and never back date!
Employers should investigate whether they wish to take part in the E-Verify program operated by the Department of Homeland Security. It provides employers a presumption that they were acting in good faith to verify employees’ status should a DHS investigator appear on your doorstep.
The process of obtaining employment authorization for employees should be the subject of an entirely separate article. Suffice it to say, many types of employment authorizations are specific to the company which filed the petition only, and there may be pitfalls associated with bringing in an employee who may be authorized to work for another company without filing a separation petition for your company. Legal advice should be sought on that topic as soon as possible since the employer’s course of action will vary according to the type of work performed and the type of work authorization necessary.
For more information on the legal rights of employers and employees, visit www.mcgrathnorth.com, or you can call their offices at 402-341-3070.