COMPLIANCE WITH IMMIGRATION LAWS IS NOT JUST FOR THOSE EMPLOYERS HIRING FOREIGN EMPLOYEES
Immigration law overlaps with many other areas of law, including business, real property, family, criminal and employment law. In the employment arena there is a dangerous assumption that only those who hire foreign workers are subject to immigration laws. This assumption is not only incorrect, but it could cost a business thousands of dollars per violation.
For instance, all employers must use Form I-9 to verify and record the identity and employment authorization of individuals hired for employment in the United States. Each employer is required to examine the employment eligibility and identity documents presented by the employee to determine whether the documents “reasonably appear to be genuine” and relate to the employee. Currently, due to the Corona visa pandemic, the Department of Homeland Security (DHS), as well as U.S. Immigration and Customs Enforcement (ICE), have announced that until May 31, 2021, those employers with no employees at a worksite are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence but, instead, employers may review and inspect the documents remotely. Regardless of the type of business, whether the employer hires foreign workers, or whether the employees are working onsite or remotely, each employer must retain all completed Forms I-9 for a period of three (3) years after the date of hire, or one year after employment is terminated, whichever is later. Importantly, employers must make available for inspection all Forms I-9 upon request by the Department of Labor, DHS or ICE (this complex area of compliance will be discussed in a future article). To review the Handbook of Employers published by U.S. Citizenship & Immigration Services, visit Handbook for Employers M-274
Compliance with immigration laws, however, is not limited to completion of Forms I-9. Pursuant to the Immigration and Nationality Act (INA), employers who engage in unlawful discrimination practices may be subject to substantial penalties. What actions can get an employer in trouble?
(1) Unfair documentary practices: For instance, requesting that an individual produce more or different documents than those required by Form I-9, or requiring a particular document such as a Permanent Resident Card (typically known as a “Green Card”), or rejecting a document that reasonably appears to be genuine;
(2) Citizenship or immigration status discrimination in hiring, firing and recruiting: This occurs when an employer treats potential employees in a different way based on the individual’s real or perceived citizenship or immigration status;
(3) National origin discrimination in hiring, firing and recruiting: This occurs when an employer treats potential employees in a different way based on their national origin, such as their place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that they look or sound “foreign.” The INA’s national origin prohibition applies to employers who have 4 to 14 employees and by the U.S. Equal Employment Opportunity Commission (EEOC) for those employers with more than 15 employees; and
(4) Retaliation or intimidation: An employer is prohibited from intimidating, threatening, coercing, or otherwise retaliating against any employee because the employee filed an immigration-related employment discrimination charge or complaint, or participated in an investigation against the employer, or asserted his/her or another person’s rights under the INA.
The INA’s prohibition of unlawful discrimination practices is in addition to Title VII of the Civil Rights Act of 1964 (Title VII) and other federal laws prohibiting employment discrimination based on race, color, national origin, religion, sex, age, disability, and genetic information, which are enforced by the EEOC.
All employers have an obligation to abide by and comply with immigration and employment laws. To learn more about this complex area, see your immigration or employment law attorney.
Author: Marie E. Wood, Esq. is a shareholder in the Murrieta office of Reid & Hellyer, APC, a law firm servicing the Inland Empire since 1897. Ms. Wood practices immigration law, as well as business and real estate law, and is fluent in Spanish. You may contact her at (951) 695-8700.
