Do you do business in Arizona, South Carolina, Oklahoma, or the more than 20 other states with restrictive immigration laws on the books or under consideration? Do you employ any workers, whether U.S. citizens or foreign nationals?
Do you know your rights and obligations? Do you know that the Ninth Circuit Court of Appeals recently upheld the Arizona law requiring all employers who do business in that state to utilize the E-Verify Program and providing for the business license revocation of employers who knowingly or intentionally employ unauthorized workers?
Under federal law, you are required to complete and maintain Forms I-9, Employment Eligibility Verification, for each member of your workforce, including U.S. citizens and even top management and owners, hired after Nov. 6, 1986, and can be fined for not doing so. Your employee is required to complete Section 1 of the Form I-9 on the date of hire. Also, within three business days of the date of hire, you must physically examine original documentation that establishes the identity and employment authorization of the employee and must complete Section 2 of the Form I-9. Further, on June 6, 2008, President Bush signed an executive order mandating that all federal contractors use a Department of Homeland Security (DHS) approved electronic employment eligibility verification system to check the employment authorization of their workers, and officially designated E-Verify as its verification system of choice.
E-Verify is a free internet-based program jointly operated by the DHS and the Social Security Administration (SSA). Participating employers are able to electronically compare information provided on Form I-9, Employment Eligibility Verification, with records in the government's social security and immigration databases. E-Verify requires enrollment and execution of an agreement (Memorandum of Understanding) with DHS and SSA and subjects the employer to certain terms, including periodic review by DHS and SSA of employer’s Forms I-9 and other employment and E-Verify related records. You should carefully consider whether E-Verify is right for your business before signing up.
In the last few years, employers have also had to become mindful of state-specific immigration laws as more and more states pass laws which add to your obligations under federal law to verify the employment eligibility of your workers. The first state to do so was Arizona, whose aggressive employer sanctions law was set to go into effect on Jan. 1, 2008. Subsequent court challenges delayed enforcement, but with the Ninth Circuit’s decision, employers should be prepared to comply.
Among the strict sanctions imposed on Arizona employers that are found to have intentionally or knowingly hired unauthorized workers, are temporary state business operating license suspension for first violations and potential permanent revocation of all the employer’s state business licenses for any subsequent violation. While the Arizona law does not provide any direct penalty to employers who do not use E-Verify, an Arizona employer’s participation in E-Verify could be a defense to a claim of knowing hire of unauthorized workers.
In the wake of Arizona’s legislation and as more and more states are following its lead, you should be aware of the immigration-related requirements in each state where you do business and take steps to have a strong employment verification policy and procedures in place.