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The Immigration Reform and Control Act (IRCA) was passed in 1986. The act prohibits employers from knowingly hiring, recruiting, and referring illegal aliens for work in the United States, either because the individual is in the country illegally, or because his or her immigration and residency status does not allow employment.

Also, the law extends to employers who, after the date of hire, find an employee to be an illegal alien and continue to employ such an individual. ALL EMPLOYERS ARE REQUIRED BY LAW TO VERIFY THAT ALL EMPLOYEES HIRED ON OR AFTER NOVEMBER 6, 1986 ARE LEGALLY AUTHORIZED TO WORK IN THE UNITED STATES.

This law applies to organizations of any size and of any number of employees. It is applicable to part-time employees and includes domestic help and farm laborers. The only exception is for the employee classification of "casual" hire where a true employer/employee relationship does not exist.

The act requires that when an applicant is hired, an I-9 form must be completed. This form certifies the applicant's identity and their eligibility to work in the United States. The form must be completed within three working days from the date of hire. Except, if the employee submits a receipt showing that they have applied for a particular verification document, an additional 21 days are allowed to produce such documents.

The only other exception is for employees who have resigned or have been terminated. In the event of their rehire, within three years from the date of their previous I-9 form, it is not necessary to complete another. Employers must retain the form for either, three years after the employee's date of hire, or, for one year after the termination or resignation of an employee - whichever is longer.

Employers often violate the act by only asking for identification from people of color; applicants with obvious cultural, language, speech, and accent differences; or another arbitrary "noticeable" difference. The law clearly requires an employer to request and verify documents from all applicant and employees, whether the employer suspects an individual may be an illegal alien, or it is obvious that an individual is not.

Form I-9 requires the employer to do the following: Have the employee sign the I-9;
Examine it to make sure it is properly completed and legible;
Examine the employee's documents establishing identify and eligibility and make a reasonable assessment as to their genuineness or validity;
Complete the verification section recording which documents were presented by the employee;
Attest to the fact that upon examination of the documents, the employee is eligible for employment.

The employer's good faith effort in complying with the verification and record keeping requirements, ensure a defense if any charges surface that the organization knowingly and willingly hired an illegal alien.

Often, there is confusion among employers as to what determines or verifies identify and employment eligibility. Some documents verify both identity and employment eligibility; some documents verify identify only; and, others verify employment eligibility only. If an individual cannot produce a document that verifies both, they must produce one that verifies identity and one that verifies employment eligibility as determined by the following.

DOCUMENTS THAT ESTABLISH IDENTITY AND EMPLOYMENT ELIGIBILITY

  • A current United States passport.
  • Certificate of United States Citizenship (INS Form N-560 or N-561).
  • Certificate of Naturalization (INS Form N-550 or N-570).
  • Unexpired foreign passport that contains an unexpired stamp which reads "Processed for I-551. Temporary Evidence of Lawful Admission for permanent residence. Valid until ______. Employment authorized"; or, has attached to it a Form I-94 that has the same name as the passport and that contains an employment authorization stamp that has not expired.
  • Alien Registration Receipt Card (INS Form I-151.)
  • Resident Alien Card (INS Form I-551), except it must contain a photograph of the bearer.
  • Temporary Resident Card (INS Form I-688).
  • Employment Authorization Card (INS Form I-688A).

DOCUMENTS THAT ESTABLISH IDENTITY ONLY

  • State driver's license or identification card containing a photograph; or, if there is no photograph, it should have identifying information, such as name, date of birth, sex, height, color of eyes, and address.
  • School or university identification card with photograph. Voter's registration card.
  • United States military identification card or draft record. Identification card issued by either federal, state, or local governmental agencies.
  • Military dependent's identification card.
  • Native American tribal documents.
  • United States Coast Guard Merchant Mariner Card.
  • Drivers license issued by a Canadian government authority.

DOCUMENTS THAT ESTABLISH EMPLOYMENT ELIGIBILITY

  • Social Security card (except it can't state "not valid for employment purposes").
  • An original or certified copy of a birth certificate issued by a state, county, or municipal authority and that has an official seal affixed to it.
  • Unexpired INS employment authorization.
  • Unexpired reentry permit (INS Form I-327).
  • Unexpired Refugee Travel Document (INS Form I-571).
  • Certificate of Birth issued by the Department of State (Form FS- 545).
  • Certificate of Birth Abroad issued by the Department of State (Form DS-1350).
  • United States Citizen identification (INS Form I-197).
  • Native American tribal document.
  • dentification used by Resident Citizen in the United States.

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