The Legal Framework Imposed on Businesses Employing Foreign Nationals
November 20, 2000

The following are excerpts of an interview (along with an introduction) I granted to a leading publication that guides businesses in day to day legal issues concerning their relationship with employees. These excerpts provide useful insights into a variety of immigration law issues from the employer’s perspective.

With employers having a large number of vacancies to fill during a tight labor market, extra care must be taken to hire only authorized applicants. Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from knowingly hiring illegal aliens. Various procedures need to be followed in order to keep from violating the provisions of the law. In a recent interview, Richard Hanus, a Chicago attorney whose practice concentrates exclusively in the area of immigration and nationality law, discusses the requirements and penalties associated with IRCA:

Q: What is the most important factor employers need to keep in mind when determining eligibility under IRCA?

A: Employers must take a good faith approach to complying with the provisions of IRCA. Employers must ask themselves whether they have reason to question the information given on the Form I-9 or the authenticity of the document being presented . If no basis to question the legitimacy of the document exists, employers should accept the document on its face. Without being presented with evidence to the contrary, the employer has no reason to reject the documentation and ultimately should rely on their employees’ assertions. In essence, “substantial compliance” with the spirit and letter of the law and good faith reliance on an employee’s documentation usually protects an employer from legal exposure and liability.

Also important, an employer must be careful not to require an employee to produce any specific document in communicating the initial I-9 compliance request. The employee must be given a chance to choose from the documents listed as acceptable under the regulations. Only if there is some legitimate reason to call into question a document’s authenticity, should the employer then request any further documentation or information.

Q: Is there any specific procedure or workflow that employers should establish?

A: An organized filing system for Form I-9 documentation must be maintained and, depending on the size of the company and frequency of employee turnover, regular internal audits should be conducted. An organized system is required under the law, and just as important, such a system will put an employer in the best position to respond to any Immigration and Naturalization Service audit when and if one takes place.

Q: What type of record keeping is required of employers?

A:. An employer must attest under penalty of perjury on Form I-9 that their employee produced documentation reflecting their identity and authorization to work – with choices of documentation specifically set forth in INS regulations. The employee must also complete and sign the Form I-9 attesting to their being a U.S. citizen, lawful permanent resident, or at least in possession of authorization to work. As previously stated, a good faith effort to comply with the law will generally shield an employer from liability if a violation is found to exist. Such an employer will usually be given an opportunity to correct or address the problem without being assessed a penalty, financial or otherwise.

Q: What type of penalties can be assessed for violations?

A: When an employer is not deemed to be acting in good faith (perhaps as a result of not having corrected previously cited problems), financial penalties – which are civil in nature – will be assessed. Penalties may range from $275 to $2,200 per alien for the first offense, to $3,300 to $11,000 for the third offense and beyond.

At worst, an employer found to be engaging in a “pattern and practice” of violations may be subject to criminal prosecution. “Pattern and practice” has been defined as “regular, repeated and intentional activities, but does not include isolated sporadic or accidental acts”. However, Congress made it clear that criminal prosecution will be reserved for “serious and repeat offenders who have clearly demonstrated an intention to evade the law”.

Q: How can an employer prevent a discrimination charge under IRCA or Title VII?

A: By federal statute, it is an unfair immigration-related employment practice for an employer to discriminate against protected individuals because of that person’s national origin or citizenship status. But, for an employer to be liable for discrimination, the employer’s intent to discriminate must be proven. Clearly, there is a fine line between being vigorously compliant with the applicable documentation requirements and acting in a discriminatory fashion against someone who may be eligible to work but given overly strict of scrutiny. Thus, when an employer requests additional documents or refuses the documents that are initially offered, a detailed memorandum should be placed in the company files setting forth the reasoning, and overall, a lawful basis for the request. Of course, discrimination against non-U.S. citizens is sometimes deemed appropriate. For instance, due to some heightened governmental stake, a U.S. or local government entity may have an interest in having only a U.S. citizen fill the position. Or an employer who is under contract with the U.S. government may be contractually mandated to have the work ultimately carried out by a citizen.

Q: Are employers required to sponsor the renewal of an employee’s visa?

A: There is no requirement that an employer must extend an employee’s work visa. If there is a legitimate work related basis to discontinue their employment and not renew or extend that foreign worker’s visa status or commence permanent residence processing, then the employer need not take such action on that employee’s behalf.

Q: Can Form I-9 be completed signed and stored electronically?

A: Practically speaking such a procedure would seem impossible given the language of the regulations now in place. The issue has been raised, but no definitive action has been taken by the INS to integrate I-9 compliance procedures with electronic signature technology. Moreover, since I-9 compliance now requires an employer to examine an employee’s original document, there would appear to be little if any added convenience of having the employee executing documentation electronically.

Q: What do you predict regarding the proposed Form I-9A?

A: It is difficult to predict when regulations will be enacted, but when and if they are, it appears the number of employee documents deemed acceptable for I-9 compliance will be reduced. That would appear to simplify things for companies and their employees. Until specific language and procedures are finalized though, one can only speculate.

Q: How effective are the pilot programs currently being offered by the INS?

A: It appears that most companies taking advantage of the program are quite satisfied. The companies that most stand to benefit from the program are those with a high percentage of foreign workers or those that have been the targets of previous INS audits. Companies get to know where they stand compliance-wise, in a more efficient and accurate manner.