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I-9 and E-Verify Issues

I-9 EMPLOYMENT ELIGBILITY VERIFICATION AND E-VERIFY

Important information for Employers and Employees

The Immigration Reform and Control Act of 1986 (IRCA) seeks to control illegal immigration by eliminating employment opportunity as an incentive for unauthorized persons to come to the United States, by prohibiting the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States. By law, all employers must verify that an individual whom they plan to employ or continue to employ in the United States is authorized to accept employment in the United States.

A U.S. employer may require the services of a foreign national to work at the company or business. If the foreign national is already a permanent resident ("green card" holder), the employer may hire that individual, but must comply with the employment verification requirements. If the foreign national is not already a permanent resident, the employer may need to file a petition for a nonimmigrant visa so that the individual may obtain the appropriate nonimmigrant classification as a temporary. The U.S. employer may also file an immigrant petition for permanent residence on behalf of that foreign national.

A foreign national cannot accept employment in the United States unless s/he has obtained employment authorized. Some foreign nationals, such as those who have been admitted as permanent residents ("green card" holders) or admitted in work-related nonimmigrant classifications (e.g. H-1B, H-2, L-1, TN etc.) or have been granted asylum or refugee status, may have the authorization to be employed in the U.S. as a direct result of their immigration status. Other foreign nationals may need to apply individually for employment authorization.

Form I-9, Employment Eligibility Verification

Under IRCA, U.S. employers must verify the employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers' immigration status.

Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties.

Form I-9, Employment Eligibility Verification, must be completed for each newly hired employee, including U.S. citizens, permanent residents, and temporary foreign workers, to demonstrate the employer's compliance with the law and the employee's work authorization.

  • Each newly hired employee (an employee who has accepted the position) must complete Section 1, Employee Information and Verification, of Form I-9 no later than the first day of employment, regardless of his or her immigration status. The employee must attest that he or she is a U.S. citizen or national, a lawful permanent resident, or is otherwise authorized to work for the employer in the United States.
  • The employee must present documentation to the employer establishing identity and employment authorization based on the most current Lists of Acceptable Documents on Form I-9.
  • The employer must examine the documents presented by the employee to verify the information and complete Section 2, Employer Review and Verification, and Section 3, Updating and Re-verification (if applicable) of Form I-9. Employers must complete and sign Section 2 of Form I-9 within 3 business days of the employee's first day of employment. If the employment relationship will last less than 3 days, then the employer must verify work authorization and complete Section 2 no later than the first day of employment.

E-Verify

E-Verify is an internet based system that allows an employer, using information reported on an employee's Form I-9, to determine the eligibility of that employee to work in the United States. For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only.

There is no charge to employers to use E-Verify.

The E-Verify system is operated by the U.S. Department of Homeland Security in partnership with the Social Security Administration.

Mandatory E-Verify for Federal Contractors

As of September 8, 2009, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to use E-Verify to determine the employment eligibility of:

  • Employees performing direct, substantial work under those federal contracts
  • New hires organization wide-regardless of whether they are working on a federal contract
  • A federal contractor or subcontractor who has a contract with the FAR E-Verify clause also has the option to verify the company's entire workforce.

Certain federal subcontractors are now required to use E-Verify

Subcontractors operating under a prime contract that contains the FAR E-Verify clause are required to use E-Verify if their contract is for services or construction with a value that exceeds $3000.

For more information, please contact us at 215-368-8600 or ak@akaimmigration.com

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