Immigration and Nationality Law

Employers are required to comply with the Immigration and Nationality Act (“INA”) which mandates that an employer is to hire and/or retain only those persons authorized to work in the United States. An employer is obligated to protect workers from discrimination on the basis of immigration status, nationality, accent, or appearance. The law prohibits discrimination in hiring and firing on the basis of citizenship status or national origin. The Civil Rights Division of the U.S. Department of Justice advises that employers “look at the facts, not the faces” when making employment decisions.

Compliance with the INA can be accomplished in part by the following steps:

1. For all employees regardless of citizenship hired after November 6, 1986, complete an Employment Eligibility Verification form (Form I-9).
2. The completed Form I-9 is to be kept on file for at least 3 years from the date of employment, or for 1 year after the employee leaves the position.
3. Permit employees to show the documents of his or her choice so long as the documents establish identity and work eligibility. Any of the documents or combination of documents listed on the Form I-9 are acceptable as long as they appear to be reasonably genuine.
4. Do not ask for more documents than required and do not demand specific documents, such as a “green card.”
5. Work authorization documents must be renewed on or before their expiration and the Form I-9 must be updated to reflect the new expiration date of the documents. This is known as “reverification” of the Form I-9.
6. An employer must accept any valid document that establishes work eligibility regardless of whether it is the same document provided upon completion of the initial form.

Failure to comply with the Form I-9 requirements may result in sanctions against the employer. An employer’s completed forms must be available for government inspection upon request. Such government inspections are known as I-9 audits and any employer may be subject to audit.

On July 1, 2009, the U.S. Immigration and Customs Enforcement (“ICE”) launched a new I-9 audit initiative by issuance of Notices of Inspections (NOIs) to 652 businesses nationwide. In one day, ICE effectively issued more NOIs than it did throughout all of the previous fiscal year. ICE’s inspections entail a thorough review of the subject employer’s compliance with employment eligibility verification laws and regulations. ICE’s stated comprehensive strategy is to reduce the demand for illegal employment and to protect the job opportunities for the lawful workforce.

At a time of increased scrutiny of employers’ hiring practices, it is essential that each employer ensure that they are meeting the requirements of the INA. It is good business practice for every employer to conduct an internal I-9 audit to confirm the absence of discrimination and conformity with documentary requirements.

The attorneys at the Law Offices of Dayna Kelly can assist you in performing an internal I-9 audit. This practice is recommended for all employers who hire foreign nationals to ensure compliance with the immigration and Department of Labor regulations. Our attorneys’ expertise in business immigration can guide you through this process.