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Employer sanctions and discrimination

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Updated: 4/13/2007 6:36 pm
U.S. citizens, permanent residents, refugees, those seeking political asylum, persons with visas issued specifically so that they can work with a particular employer, and persons issued an employment authorization document, or EAD (E-A-D), by the Immigration and Naturalization Service are allowed to work in the United States. Individuals who aren’t documented, or who have nonimmigrant visas that don't allow employment can’t work legally in the U.S. In order to encourage employment practices that both adhere to immigration laws as well as anti-discrimination laws, the Immigration and Control Act, or IRCA (I-R-C-A), created employer sanction laws to specifically outline an employer’s legal obligations when hiring workers. Basically, these laws require all employers to make sure that job applicants are authorized to work in the United States before hiring them. To do so, employers must verify employment authorization for all hired employees using INS (I-N-S) Form I-9 (eye-nine). Employers must ensure that new employees fill out the I-9 form within the first three days of employment and that each employee provides the required documents proving eligibility for employment, even if the employee is a U.S. citizen by birth. Employers must accept whatever documents are shown, as long as they’re designated by the INS on the I-9 form as acceptable proof of the identity and employment verification of each employee. Employers must make a good faith effort to determine that the documents are valid. They then must keep the I-9 form on file for three years after the date of hire or one year after the employee no longer works for the company, whichever is later. The I-9 serves two functions: it allows employers to assist the INS in enforcing the immigration laws and it’s used as evidence against an employer who fails to complete and store the forms properly, whether or not any of its employees are illegal aliens. Any violation of the employer sanctions laws may result in civil and criminal penalties of up to $3,000 (three thousand dollars) for each unauthorized working alien and a prison sentence up of to six months. The INS conducts over 60,000 (sixty thousand) I-9 inspections per year. In addition to verifying employment status, employers must also be careful to adhere to anti-discrimination laws. This means an employer can’t ask during a job interview what the job applicant’s employment status is, as this could constitute illegal discrimination. Instead, the employer can notify the applicant that should the job be offered, he or she is expected to provide evidence of being legally entitled to work in the U.S. The employer should say this to every job candidate and avoid saying this selectively to foreign-born candidates. Furthermore, an employer who singles out a particular nationality or ethnic group and performs a higher level of scrutiny on their documents over other candidates may face penalties under anti-discrimination laws. Citizens and non-citizens must be treated equally in completing the I-9 form. Employer sanctions laws are a very complex area of law, and employers who don’t understand their obligations should ask the INS for a copy of an employer sanctions handbook.
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