December 27, 2007

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Employment Law Alert:Sanctions on Employers Hiring Illegal Immigrants

December 21, 2007
EMPLOYER ALERT

The Arizona Fair and Legal Employment Act ("Act"), which is scheduled to take effect on January 1, 2008, requires Arizona employers to verify the legal immigration status of newly hired employees by using the federal government database known as E-Verify. A number of groups have challenged the Act in federal court but to date, these lawsuits have been unsuccessful.

E-Verify is jointly administered by the U.S. Department of Homeland Security ("DHS"), the U.S. Citizenship and Immigration Services Bureau, and the Social Security Administration ("SSA"). E-Verify provides participating employers a means of verifying whether newly hired employees are authorized to work in the United States by checking the information provided on an employee's I-9 Form against the DHS and
SSA databases. Employers can register with E-Verify at https://www.vis-dhs.com/EmployerRegistration. Before using the E-Verify program, an employer must sign a memorandum of understanding in which it consents to the inspection of its employment records by the DHS and SSA.

After the effective date of the Act, employers should apply the E-Verify program uniformly to all newly hired employees, but are prohibited from using the E-Verify program to prescreen applicants prior to employment, or to verify the immigration status of current employees.

Employers should continue their current practice of completing Form I-9's for newly hired employees. A copy of the new Form I-9 which was revised effective November 2007 is attached for your convenience. Copies of the revised Form and instructions for its use can also be obtained at www.uscis.gov.

The Form I-9 still needs to be completed within 3 business days after an employee's initial hire date. However, after completing the Form I-9, and within three business days after the employee's initial hire date, Arizona employers must now enter the information from the I-9's Section 1 (employee name, address, date of birth and social security number) and Section 2 (the title, number and expiration date of the documents the employee is using to establish identity and employment eligibility) into the E-Verify system. If the employee provides a permanent resident card or employment authorization document as part of the I-9 process, the employer must also confirm that the picture on this document matches the picture provided by E-Verify.

Hopefully, E-Verify will advise the employer that the individual's employment is authorized, or that verification is in process and will be completed within 3 business days. If E-Verify provides a "tentative non-confirmation" of the employee's I-9 information, the employer should allow the employee to keep working unless and until a "final non-confirmation" is received. Once a "final non-confirmation" is received from the E-Verify system confirming that the employee is not legally authorized to work in the United States, the employer should terminate the individual's employment on the grounds that he or she was unable to complete a valid I-9 Form.

In response to the Act, Employers should consider auditing their existing I-9 Forms. To conduct an audit, the Company should match I-9's to its roster of employees. The Company should make sure that every employee hired after November 6, 1986 (the approval date of the Immigration Reform and Control Act of 1986) has completed an I-9 Form. If there is no I-9 Form, the Company should take the corrective action of curing this deficiency. To cure the deficiency, an I-9 must be completed using the date that the audit or the date the supporting documents are reviewed.

Next, the Company should inspect Sections 1 and 2 of the I-9 Form for every employee to make sure it is filled out completely and correctly. If there is a deficiency or if information is incomplete, the employee should insert the correct information and date and initial the I-9 Form using the date it was corrected.

The final step of the audit should consist of ensuring that information on the I-9 Form is current (look for name changes or outdated employment authorizations) and that employment authorizations are still valid. If a deficiency is noted or a re-verification is required, the updated data needs to be entered in Section 3 of the Form I-9 with the new date.

An employer who is found to have violated the Act by knowingly hiring illegal workers will be subject to monetary fines and the suspension or permanent revocation of the employer's business license.  

If you have any questions about the Act and how your business may be impacted, please contact Carolann E. Bullock or Kristy L. Peters. If you would like to receive Ryley, Carlock & Applewhite's "Employer Alerts" electronically, please contact Paul Ward, Marketing Director, at pward@rcalaw.com.

Michael D. Moberly mmoberly@rcalaw.com (602) 440-4821
Carolann E. Bullock cbullock@rcalaw.com (602) 440-4828
Charles L. Chester cchester@rcalaw.com (602) 440-4806
Nathan R. Niemuth nniemuth@rcalaw.com (602) 440-4810
Rodolfo Parga, Jr. rparga@rcalaw.com (602) 440-4848
John M. Fry jfry@rcalaw.com (602) 440-4867
Erin O. Sweeney esweeney@rcalaw.com (602) 440-4858
Kristy L. Peters kpeters@rcalaw.com (602) 440-4863
Ellen J. Glass eglass@rcalaw.com (602) 440-4887

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