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Immigration Compliance

Dear Mary, I am about to hire someone from Canada. Do I need to file a Form I-9? As an employer, what do I need to know about complying with immigration and nondiscrimination laws?

As you can imagine, a broad range of immigration law issues arise when an employer wants to hire non-U.S. citizens. Regardless of the number of people you employ, employers must follow the Immigration Reform and Control Act of 1986 (IRCA).

Under the IRCA, it is unlawful to knowingly hire, recruit, or refer unauthorized aliens for employment in the United States. It is also unlawful to continue to employ an alien knowing that he or she has become an unauthorized alien. Employees hired after Nov. 6, 1986, must comply with Form I-9 employment verification requirements. However, remember from previous articles that discrimination against prospective or current employees on the basis of national origin or citizenship status is prohibited under several laws, including IRCA.

Form I-9 is an employer’s verification of an employee’s authorization to work. There are sections for the employer to fill out and sections for the employee to fill out and sign. Employees must complete the first section of the form on their first day of employment, and employers are required to make sure that section is filled out completely. The second section of the form must be completed within three business days, unless the person was hired for less than three days.

Whenever you need a Form I-9, print it from the United States Citizenship and Immigration Services (USCIS) website: USCIS revises the form from time to time, and employers are liable for civil penalties if they use an incorrect form.

Be careful to avoid what’s known as “document abuse” when filling out a Form I-9. This occurs when an employer requests that an employee produce more documents than Form I-9 requires, or requests that employees produce a specific document, such as a green card. Rejecting documents that appear to be genuine or disparate treatment of different groups of applicants may also be considered document abuse.

Form I-9 is not filed with the government. Employers should retain it until the later of three years after the date of hire or one year after the person’s termination of employment. If you wish, you may complete, sign, scan, and store forms electronically, as long as the electronic system comports with the regulations. Be careful here: A couple of years ago, Abercrombie & Fitch settled a claim for more than $1 million because of technology-related deficiencies in their electronic Form I-9 verification system.

Keep in mind that you are also prohibited from continuing to employ an individual who is not authorized to work. When information arises that suggests an employee may not be authorized to work, you must immediately investigate that information and take prompt action to resolve the matter.

Penalties for failing to comply with IRCA regulations may include warnings, monetary penalties, and even criminal penalties if there is a pattern or practice of knowingly hiring or continuing to employ unauthorized workers.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

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