ip871113.html - the new immigration act

The new Immigration Act --
What you must do to avoid penalties

The new Immigration Act affects every employer.

By Janet E. Goldberg

The new Immigration Act affects every employer. It does not apply only to hiring "foreigners," but instead sets forth a comprehensive regulatory scheme governing the hiring of all employees. It cannot be avoided simply by hiring English-speaking, American-looking people. Indeed, to do so would possibly subject an employer to penalties for violating the anti-discrimination provisions.

Employer obligations

Now that the final regulations under the new Immigration Reform and Control Act of 1986 (Act) have been issued, there is guidance as to what employers will need to do. This Act and the accompanying regulations impose specific obligations on employers to ensure that they are hiring only those persons who are legally authorized to work in the U.S.

The Act changes prior law and policy by mandating penalties for employers who fail to follow the Act's requirements. These important changes and how they impact on your operations are highlighted below.

New employment verification system

Employers must verify the employment status of all employees hired after Nov. 6, 1986, by examining documents belonging to those employees establishing their citizenship status or authority to work in the United States. This requirement to examine documents applies to all new hires, including those new hires who are United States citizens by birth.

For employees currently on the payroll and who were hired between Nov. 7, 1986, and May 31, 1987, an employer had until Sept. 1, 1987, to verify their status. For employees hired after May 31, 1987, employers must verify their status within three days of their hire. However, an employee who presents a receipt showing that he has applied for his documents has an additional 21 days to present those documents to his employer.

Grandfather clause

An employer need not verify the employment status of employees hired prior to Nov. 7, 1986. An employer will not be liable for penalties for continuing to employ such individuals.

It is important to note than an employee who was hired before Nov. 7, 1986, does not become authorized to work in the United States because of that fact. Thus, if an employee is illegal he may be deported; however, the employer will not be subject to monetary or criminal sanctions under the Act.

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Application to private and public employers

The new Immigration Act applies equally to private and public employers. There is no exemption for the "small" employer. Anyone who employs another on other than a "casual" basis is subject to the Act and possible penalties.

Contrary to the earlier preliminary regulations, the Act does not apply to persons who provide services as "independent contractors." Caution is advised in this area, however, as a fairly strict standard for determining independent contractor status will be used. Anything short of a completely bona fide independent contractor relationship will not be successful in circumventing the verification requirements.

Penalties

Beginning July 1, 1987, an employer may be held liable in monetary penalties and, in extreme cases, for criminal penalties for hiring unauthorized aliens or for failing to comply with the Act's verification requirements. However, from July 1, 1987, through May 31, 1988, there will be no penalties for a first violation, only a written citation.

The new Immigration Act applies equally to private and public employers.

Beginning June 1, 1988, or earlier if there has been a first violation, monetary penalties will be imposed. It is important to note that although no penalties will be imposed prior to July 1, 1987, the Act mandates compliance from November 7, 1986, forward. A post-July 1, 1987, inspection which discloses pre-July 1, 1987, violations could result in fines. Accordingly, employers are urged to begin complying with the new Act immediately.

The penalties for hiring an unauthorized alien will be as follows:

• for a first violation, $250 to $2,000 per alien;

• for a second violation, $2,000 to $5,000 per alien, and

• for a third and/or additional violations, $3,000 to $10,000 per alien.

In addition, even if the employer has not hired unauthorized aliens, but fails to follow the verification requirements or keep the required records, he will be subject to separate penalties ranging from $100 to $1,000 per individual viola-

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tion. Also, if the employer is found to have engaged in a "pattern or practice" or hiring violations, criminal fines of $3,000 per alien and a six-month jail term may be imposed, in addition to the civil fines reflected above.

I-9 form

The regulations provide that in order to meet the new Act's verification requirements, an I-9 form must be completed. The I-9 form has been developed by the Immigration Naturalization Service (INS) expressly to achieve compliance with the Act.

The form is divided into two parts. The first part is for the employee to complete and asks for certain personal information, such as the employee's name, home address, date of birth and Social Security number. It then requires the employee to attest under penalty of perjury that he is either a citizen or an alien authorized to work, and to present certain prescribed documents evidencing that fact.

The I-9 form was developed to achieve compliance with the Act.

The second part of the I-9 form must be completed by the employer. The employer's representative charged with completing these forms will need to check the box or boxes on the I-9 form which correspond to the documents examined, fill in the document numbers and any expiration dates, and then sign the bottom of the form. This indicates that he is attesting, under penalty of perjury, that the documents indicated on the form were examined, appear to be genuine and relate to the individual named. It also signifies that, to the best of his knowledge, the individual is authorized to work in the United States.

If an employee is hired and an I-9 form is completed on him, and he leaves but is later rehired, the employer need not complete a new Form I-9 on that employee so long as the employee is rehired within three years of his initial hire date, and the I-9 indicates that the individual is still authorized to work. Also, if an employee is temporarily absent on an approved leave of absence or a temporary layoff, or is transferred to another location, a new I-9 form need not be completed upon the employee's return to work.

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Documents which satisfy the verification requirements

Under the new Act employers must examine documents which establish both the individual's authorization to work and his identity. The purpose of the employer's two-part document inspection is to ensure that the employee who presents papers authorizing his eligibility for work is, in fact, that individual, and that an employee has not produced fraudulent eligibility documents. Thus, a document establishing legal authorization to work, without establishing identity, is insufficient.

The regulations recognize that there are some documents which establish both authorization and identity and others which establish one or the other. Accordingly, three lists of acceptable documents were adopted.

The first, known as List A, includes documents which establish both identity and employment authorization, such as a United States Passport or a Certificate of Naturalization.

The second list, designated List B, includes documents establishing identity only, such as driver's license, a school identification card or a voter's registration card.

Finally, List C includes documents which establish work authorization only. Examples of List C documents include a Social Security card and a birth certificate.

An employer must examine either one document from List A or, alternatively, two documents (i.e., one document from List B and one document from List C). Also, if a document initially presented expires on a certain date, the employer will need to see additional authorization (i.e., an extension or a new grant of eligibility) before allowing the employee to continue working past the expiration date.

Special rule

Until Sept. 1, 1987, employers may have hired an unauthorized alien if the alien stated that he intends to apply for legalization and if he presented documentation establishing his identity. After Sept. 1, 1987, this special rule expired, and the applicant is now required to show a work authorization document to be hired or to continue to be employed.

Retention of records

The I-9 form must be retained for at least three years. If, however, the individual is employed for longer than three years, then the I-9

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form must be retained for one year after the individual leaves employment. Employers may, but are not required to, photocopy the documents examined.

Unlawful discrimination

Under the new Act, employers with four or more employees may not discriminate against any individual on the basis of national origin, or in the case of a citizen or intending citizen, because of citizenship status. In addition, Title VII of the Civil Rights Act of 1964, prohibiting national origin discrimination, remains in effect for employers who have 15 or more employees.

Employers may not discriminate against any individual on the basis of natural origin or citizenship status.

Employers who are found guilty of violating the Act's discrimination prohibition may be ordered to reinstate or hire individuals, with or without backpay, and pay a fine of up to $1,000 for each individual discriminated against for first time violation, and up to $2,000 for each individual discriminated against for a repeat violation.

A district court in Texas recently held in a case of first impression that an employer's termination of four illegal aliens for submitting false documentation violated the anti-discrimination provisions of the new Act. (League of United Latin American Citizens v. Pasadone Independent School District (S.D. Tex.) No. 4-87-935, 4/14/87.) The court ordered reinstatement for the former employees and enjoined the company from dismissing any other employee who was applying for legalization, for prior instances of providing false documentation.

Conclusion

Obviously, employers need to familiarize themselves with the new Immigration Reform and Control Act and its regulations as quickly as possible in order to meet the compliance deadlines. While many employers face some major administration burdens in complying, it is anticipated that once proper procedures are in effect, those burdens will diminish. It is likely that this regulatory scheme, and subsequent refinements, will be part of the employment landscape for some time. It behooves all employers to learn how to comply with them with the least amount of risk exposure and the most minimal imposition of administrative burden.

ABOUT THE AUTHOR:

Janet E. Goldberg is a partner and a member of Sachnoff Weaver & Rubenstein, Ltd's. labor and employment law group in Chicago. She received her J.D. from the University of Illinois College of Law in 1975, and is admitted to the Illinois and Missouri Bars.

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