Immigration remains a constant issue throughout the United States, and is no less a focal point in border states like Arizona. As most know, it is unlawful for employers to knowingly hire employees who are not authorized to work in the United States. By law, employers must verify identity and employment authorization, complete and retain I-9 forms, and conduct an electronic verification for each new employee hired. Employers must do all of this without discriminating against applicants and new hires on the basis of national origin or citizenship. It is lawful and advisable to inform applicants that they must prove work eligibility. Conversely, informing applicants that the company only hires United States citizens is unlawful.
I-9 Forms
Employers must have all new hires complete Section 1 of the I-9 on their first day of employment, and employers must complete the employer section within three business days. New hires have the right to select which documents they will produce from the options listed on the I-9 to prove identity and work eligibility. These documents need to appear reasonably genuine and related to the new hire. Employers need not undertake rigorous independent authentication of offered documents. Unmistakable illegitimate documents should not be accepted. This process should be completed promptly to avoid costly fines and audits.
E-Verify
Employers in Arizona must enroll in and use the federal electronic verification system (E-Verify) to verify employment eligibility, in compliance with the Legal Arizona Workers Act, which prohibits businesses from knowingly or intentionally hiring unauthorized workers. E-Verify is a web-based system through which employers electronically confirm the work eligibility of their employees. The enrollment process can be a bit complex and involves some extensive user training, but it provides quick results to verify employment eligibility.
I-9 and E-Verify Audits
Employers should also consider conducting periodic I-9 and E-Verify audits, which will ensure that all steps for employment verification are properly followed and appropriate documentation is retained. Audits like these help ensure compliance, but they also help employers show good faith efforts in the event of a mistake or a government audit.
The responsibility for employment eligibility verification and completion of all required documentation should only be entrusted to properly trained administrative professionals. Remaining attentive to evolving legal requirements and being vigilant with record-keeping requirements will help employers stay compliant. Seeking advice from an experienced employment attorney can help ensure compliance with immigration law, and lower the risk of heavy fines and potential lawsuits.
Mr. Mason counsels employers and management on all aspects of labor and employment law, including collective bargaining and union organizing; restrictive covenants; employment discrimination; sexual harassment; whistleblowing; retaliation; wrongful termination; personnel policies; reductions in force; trade secrets; restrictive covenants; duty of loyalty; drug and alcohol testing; wage and hour; and other state and federal laws, rules, and regulations. He is also an experienced litigator, representing clients in Arizona, federal, and appellate courts, as well as before administrative agencies, including the National Labor Relations Board (NLRB), the Department of Labor, the Equal Employment Opportunity Commission (EEOC), the Arizona Civil Rights Division, and the Department of Economic Security.
Chris M. Mason is a member at Jennings, Strouss & Salmon, P.L.C.
