October 16, 2008


Employers must be careful to comply with work eligibility laws

By Jonathan W. Yarbrough
Employment Law Corner

Under the U.S. immigration laws, individuals who are not U.S. citizens or U.S. permanent residents are required to have work visas in order to live and work in the United States.

In addition, all U.S. employers must comply with federal regulations that require them to verify that each new hire has authorization to work.

Illegal immigration is not a new problem. In the mid-1980s, Congress decided to enlist the private sector to help enforce federal immigration laws. The idea was that if employers were required to verify work authorization, foreign workers would stop coming to the United States illegally.

The Immigration Reform and Control Act of (IRCA) requires employers to verify the employment eligibility of all new hires. Under the law, employers are required to verify employee identity and authorization to work in the U.S.

Employers are required to complete Form I-9 for all new hires. That form requires the employer to attest that it has examined each employee's documents and has verified his/her ability to work in the United States.

The two documents most frequently presented by new hires to complete the I-9 process are a driver's license (identify document) and Social Security card (work authorization document). Immigration and Customs Enforcement has announced publicly that many of the undocumented workers it has picked up had presented bogus documents when hired.

Given the number of illegal immigrants currently in the U.S. — 12 million, by one estimate — it is only reasonable for employers to assume that some percentage of their work force is illegal.

The Department of Homeland Security has made it clear that it is focusing on employer good faith and “constructive knowledgeâ€