January 2018 saw one of the most prominent examples of President Trump’s immigration-enforcement agenda. Officers from the United States Immigration and Customs Enforcement Agency (ICE) visited 98 7-Eleven franchises in 17 states across the nation demanding access to employment documentation and arresting undocumented workers. Specifically ICE was looking for proof that workers were legally entitled to work in the United States and that employers were complying with Immigration rules documenting workers’ eligibility. Thomas D. Homan, the Acting Director of ICE promised additional enforcement actions and warned employers: “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.” https://www.nytimes.com/2018/01/10/us/7-eleven-raids-ice.html.
Although not-for-profit organizations have fewer resources than other employers, they are still subject to the same employment laws as the for-profit entities. And they must still follow the requirements imposed on employers to verify eligibility for employment, even where the employer may strongly suspect that all employees are U.S. citizens.
As a reminder, the US Citizenship and Immigration Services require that employers verify employment eligibility for employees – this requirement includes citizens as well as noncitizens. Form I-9 is the tool that CIS provides to employers for verification of identity and eligibility. Both employer and employee complete portions of the form and employees must provide employers with acceptable documents (identified on Form I-9) to verify his identity and eligibility for work. Significantly, Form I-9 must be completed within three business days from the date that employment begins. Completed I-9 Forms should be kept separately from personnel files and must be maintained for three years from the date of hire, or one year from the date of termination, whichever period of longer. CIS has an internet based employment eligibility verification process, E-Verify. For most employers, this is a voluntary program. Employers enter the information from the I-9, but are also required to input social security numbers and include photo identification. Federal Contractors are required to use E-Verify.
What does this mean for your business? Prudent risk management practices counsel that companies perform self-audits of their hiring practices, including initial employee paperwork processes. Hiring managers or those employees charged with record keeping functions must be trained on acceptable practices and on-going compliance should be monitored. Your company should periodically audit its I-9 process. Engaging in these preventative practices ahead of time will alert you to whether your company has potential risk and help your company avoid fines and penalties for failure to document employment eligibility.
If you have questions or concerns about your hiring processes, or other employment issues, please feel free to contact me at vkelly@clarkhill.com.
The foregoing publication is intended solely for the education and information of the recipient. It is not intended to be legal advice or a legal opinion and should not be regarded as either legal advice or a legal opinion.
