Employing Undocumented Workers and Discriminating in Violation
Of the Immigration and Nationality Act
Whyte Hirschboeck Dudek, SC
The Immigration and Nationality Act ("INA"), which was enacted in 1952 and amended by the Immigration Reform and Control Act of 1986, prohibits employers from employing undocumented workers and also prohibits job discrimination based upon immigration status and nationality. Employers continue to have questions regarding how to properly complete INS Form I-9 (otherwise known as Employment Eligibility Verification) for their workers and what constitutes discrimination based upon immigration status and/or nationality. This article will generally address both of these issues.
Form I-9. At the time of hiring, employers must complete Form I-9 for all workers, including U.S. citizens, who were hired after November 6, 1986. Form I-9 permits an employer to verify the identity and work eligibility of its workers and thereby avoid employing undocumented workers. The Form specifies which documents provide acceptable proof of identity and eligibility to work. Employers cannot specify which document(s) they will accept and cannot ask for more documents than required by law. As long as each document is contained in the list of acceptable documents that establish identity or work eligibility and appears reasonably genuine on its face, employers must accept the document.
In some situations, employers are also required to reverify the work eligibility (but not the identity) of an employee after the time of hiring. During the reverification process, employers must accept any valid document presented by the employee even if the document is different from the document initially provided.
Completed Form I-9s must be kept on file for at least 3 years from the date of hire or for 1 year after the employment ends, whichever is greater. Upon request, employers must make I-9 Forms available for inspection by the U.S. Immigration and Naturalization Service, the agency responsible for enforcing the employment eligibility verification provisions of the INA. An employer who is found to have failed to comply with Form I-9 requirements will be subject to penalties, including fines.
Discrimination. The INA prohibits employers with 4 or more employees from discriminating against U.S. citizens, U.S. nationals and authorized aliens based upon an employee’s national origin or immigration status. The U.S. Department of Justice ("DOJ") is the agency responsible for enforcing the anti-discrimination provisions of the INA. The following actions by employers may be considered violations of the anti-discrimination provisions of the INA: (i) specifying documents which are acceptable for I-9 purposes; (ii) failing to accept documents which reasonably appear to be genuine; (iii) implementing a "citizens only" or "permanent resident only" hiring policies; and/or (iv) basing job-related decisions (i.e., hiring, firing, promotion, etc.) on appearance, accent, name or immigration status of employees.
If the DOJ determines that an employer has violated the anti-discrimination provisions of the INA, the employer may be required to pay fines, to hire or rehire the employee and to pay back wages to the employee.