Masonry Magazine August 1987 Page. 31
IMMIGRATION LAW REFORM
CHANGES IN THE IMMIGRATION LAW WILL HAVE A DIRECT
AND IMMEDIATE EFFECT ON EVERY EMPLOYER WHO DOES
BUSINESS IN THE UNITED STATES
by James J. Clarke II
Pedersen & Houpt, P.C.
MCAA Legal Counsel
Introduction
By now you have probably read and heard about the Immigration Reform and Control Act of 1986, which drastically changes previous immigration law and will have a direct and immediate impact on every employer who does business in the United States. This article will discuss the key points that you, as an employer, need to know.
Under U.S. law, an alien is a person who is not a U.S. citizen or national. Any alien who desires to work in the U.S. must obtain the appropriate work authorization. While it has been illegal for unauthorized aliens to work in the U.S., the law previously imposed no penalty on employers who hired these individuals. As a result, some employers hired aliens without checking whether they had the appropriate authorization. Since American jobs generally pay higher wages, many unauthorized aliens have been drawn to the U.S. One of the primary purposes of the Act is to deter illegal immigration into the U.S. by making jobs unavailable.
The Act has a dual approach to the problem of illegal immigration. First, the Act subjects employers to civil and possible criminal penalties under federal law for knowingly hiring unauthorized aliens or for failing to examine a job applicant's documentation to determine the individual's identity and eligibility for employment. Second, the Act establishes a program designed to "legalize" any aliens who have been in the U.S. for the last five (5) years. Finally, the Act contains an anti-discrimination provision to protect authorized aliens from discrimination on the basis of natural origin.
Your Hiring Policies
Effective November 6, 1986, it is unlawful to hire an alien or to recruit or refer an alien for employment in the U.S. if you know that the alien is not lawfully admitted for permanent residence or authorized to work in the U.S. However, employers presumably cannot bury their heads in the sand and claim that they "did not know" the individual was unauthorized to work.
In addition, the Act requires employers to verify the identity and work authorization of all employees hired on or after November 6, 1986, whether U.S. citizens or aliens, legal or illegal, and without regard to appearance, accent or any other factors. The Immigration and Naturalization Service has developed an "Employment Eligibility Verification Form" (Form 1-9), which must be completed and signed by both the employer and employee. Form I-9 must be completed for all individuals hired on or after November 6, 1986, be they aliens or U.S. citizens. According to the Act, you must prepare the form at the time of hire. However, the regulations allow you three (3) business days in which to physically examine the documents presented and to complete the form. If you have hired employees since November 6, 1986 without completing Form 1-9, you should complete the form now. A copy of Form 1-9 appears in this article. You may make as many photocopies as you need.
You must retain Form 1-9 for three years from the date of employment or for one year after employment has been terminated, whichever is later. The 1-9 is valid for purposes of rehiring temporary or seasonal employees. Although there is no requirement that an employee retain identity and work authorization documents, you should make copies of these documents and place them in the individual's personnel file along with a completed 1-9 as evidence showing compliance with the Act.
As stated above, the Act requires employers to verify both identity and work authorization. Some documents are acceptable as evidence to fulfill both requirements while others only fulfill one of them.