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WORKING WHILE IN THE UNITED STATES - PART 2: THE EMPLOYER'S REQUIREMENT TO IDENTIFY AND VERIFY THEIR EMPLOYEES

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HAPPY NEW YEAR 2018!  I hope everyone had a great time celebrating the new year. Now that we have welcomed 2018, let's plan to make this year and this column even better than last year. It is my continued goal to not only educate but to also inspire my readers to go out and better themselves and those around them. It is through knowledge that you can empower yourself to do all that you wish to do.

As a recap of part 1 of this series on the Employment Authorization Document, I discussed the issue of being able to legally work in the US if you are not a U.S. citizen, permanent resident or entitled by virtue of your immigration status (i.e., H-1B, E-2, etc).  The most important fact to remember is that in order to legally work in the U.S., you must first obtain authorization from the United States Citizenship and Immigration Services (USCIS).  In this week's article, as promised, I will be discussing employment of foreign nationals from the perspective of the employer. Specifically, I will review the legal requirement to verify all prospective employees, the USCIS e-Verify system, and some general pointers for business owners/employers.  Remember, the information that I am presenting to you in this article is general. Please schedule an office visit with me if you need more specific and/or legal information.

(Note: A "foreign national" just means someone who was not born in the U.S. and is not a naturalized U.S. citizen).

General Notes for the Employer regarding Work Authorization Requirements

In general...

1) A foreign national living in the U.S. cannot legally work in the U.S. unless they obtain employment authorization from USCIS or are in a classification where employment is authorized by virtue of the visa classification (Please see Note #3 below). 

2) Since November 1986, all employers are required to only hire those individuals who may legally work in the U.S. All employers must verify the employment eligibility of their employees and can be fined penalties for failing to not only verify, but also to maintain proof of verification. This requirement includes citizens and noncitizens.

3) U.S. Citizens, by birth or via the naturalization process, as well as those with green cards automatically have permission to work. These individuals do not have to obtain an EAD. This includes foreign nationals who obtained H1-B visas (specialty workers), E treaty trader or treaty investor visa, or other work-based visas, which have been sponsored by U.S. employers. For employers seeking proof of work authorization, these individuals can simply show their U.S. birth certificate, Certificate of Naturalization, Lawful Permanent Residency card (aka "Green Card"), or work-based visa approvals.

4) Verification of employment eligibility is by completion of an immigration-issued Form I-9

Employers are required by law to Verify Worker Eligibility: IRCA and the I-9 Verification Form

The Law.

In 1986, Congress enacted the Immigration Reform and Control Act or "IRCA" in order to "control and deter illegal immigration to the United States" (https://www.uscis.gov/tools/glossary/immigration-reform-and-control-act-1986-irca). From my reading, it seems Congress passed IRCA on the belief that if someone is not authorized to legally work in the United States, then this would deter that person from either illegally entering the United States or remaining past their authorized stay. Regardless of whether IRCA actually works as believed, it is the law! And what this law says is that all employers must verify not only the identity but also the employment eligibility of all their employees. IRCA actually makes it unlawful for any employer to knowingly hire a worker who is not authorized to work in this country. 

The Form.

In verifying the eligibility of their employee, the employer must complete Form I-9 for each new employee hired. The "I-9" or Employment Eligibility Verification Form, is issued by Immigration and has 3 main sections. The form must be completed by both the employee and the employer (or any authorized representative of the employer, such as an attorney like myself). 

What Documents Can Be Used to Show Identity and Eligibility?

There are many different documents that an Employer can obtain from an Employee to verify identity and work eligibility. Because you are required to prove both Identity and Eligibility to Work, some documents can be used to show both, while others must be used in addition to some other documents. Here are just some examples:

 

Docs which establish both Identity & Employment Authorization

U.S. Passport

Permanent Resident Card (aka Green Card)

Employment Authorization Document (EAD) w Photo

 

 

Docs that establish Identity                  AND                     Docs that establish Work Authorization

Driver's License                                                             Social Security Card with No Restrictions

State-Issued ID Card                                                      Birth Certificate issued by a territory of the US

School ID w Photograph                                                  EAD without a Photo

 

The E-Verify System

E-Verify is an online approach for employers to verify the eligibility of their employees to work in the United States. (NOTE: E-Verify does not absolve the employer and employee from requirement to complete the I-9 form discussed above).  Because E-Verify uses information contained in the Form I-9 with that of information and records that USDHS already has, the completion of the I-9 is still needed. E-Verify exists only to expedite and confirm the I-9 Information. After submission of the case, most results are displayed almost immediately.

If you are interested in E-Verify, you must first enroll your company/business. You can do this by visiting:  https://www.uscis.gov/e-verify/e-verify-enrollment-page.  And for more general information of E-Verify, please visit: https://www.uscis.gov/e-verify

So there you have it: some general information regarding the employer's legal requirement to identify an employee and verify their legal status to work here in the United States, what documents can be shown to establish those requirements, and a quick overview of the E-Verify system.  

And as always, if you have any general questions you would like to be answered in future articles, please email me at: This email address is being protected from spambots. You need JavaScript enabled to view it. . To schedule a consultation to review your specific case, please contact my office at: (818) 846-5639, or my direct Thai number at: (818) 505-4921.

Disclaimer: The information contained herein have been prepared for informational purposes only and are not to be considered legal advice unless otherwise specified. If you have a specific question regarding your personal case, please contact the Law Offices of Joseph Chitmongran for a full consultation. The views and opinions expressed are those of the attorney and not of Sereechai Newspaper, its staff or anyone associated with the news organization.