Company officials must know, follow immigration laws

Recruiters today know that qualified candidates for a wide variety of positions may come from just about any part of the globe. U.S. citizen candidates and international candidates have at least one thing in common, however. An Employment Eligibility Form — the so called I-9 — must be completed for each when they are hired.

Completion of this form for all hires was made mandatory by the Immigration Reform and Control Act of 1986. On March 8, 2012, the U.S. Citizenship and Immigration Service published the seventh edition the I-9. The use of this new form became mandatory on May 8.

Recruiters who want to ensure the candidates they have sourced are hired in accordance with the law are prudent to know something about the I-9, since even routine I-9 paperwork violations can lead to thousands and even millions of dollars in fines. Violations also may mean that some hires will have to be terminated.

The new I-9 form has morphed from one to two pages. Page one must be completed by the new hire while page two is solely the employer’s responsibility. Employers are faced with a formidable task when completing the form, because many of the fields are more complex than they appear.

For example, how many employers know what a “noncitizen national” is? The instructions to the new form define this term as follows: “Noncitizen nationals of the United States are persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands and certain children of noncitizen nationals born abroad.” Unlike the old instructions, the USCIS has, at last, defined the term. However, this definition is about as clear as mud. The use of the words “certain” and “former” make this definition ambiguous. Are new hires and employers expected to know the definition of “former Trust Territory or the Pacific Islands”? Look this up on Wikipedia and you will learn about “Chuuk, Yap, Kosrae and Pohnpei.” Seriously.

Few employers know new hires need not list their Social Security numbers in Section One. Unless, of course, the employer is part of the E-Verify system, in which case the listing of the Social Security number is mandatory. The new instructions make this clear.

Because the penalties for noncompliance are so severe, many employers lean over backwards in attempting to comply with these complex rules. Ironically, these efforts are often to the employer’s detriment. The Justice Department’s Office of Special Counsel has fined numerous employers, some more than $100,000, for demanding too many documents from new hires and for discrimination.

In the world of I-9s, things that may seem obvious often are not. For example, if a new hire is a conditional permanent resident, his permanent residence expires after two years. Shouldn’t the employer reverify his employment authorization before it expires? Simple logic says yes, but the instructions say no. If the employer does so, he or she is violating the law.

Once the discussion shifts to temporary working status, there is little in the law or the regulations to guide employers. So, in its “Handbook for Employers: Guidance for Completing Form I-9,” the USCIS must simply resort to making things up.

To stay current, recruiters, human resources departments, and legal personnel can attend I-9 seminars and make sure to carefully read the new I-9 form, instructions and the USCIS handbook.

Also, it is not a bad idea to consult with an attorney who is well-versed in I-9 issues on a regular basis and to perform regular internal audits to make sure that you are fully compliant with I-9 rules.

This is all to reiterate the well-known axiom that recruiting does not end with the hire. It also includes retention, and ensuring that I-9 forms are completed correctly can help employers retain U.S. citizens and international personnel.

Carl Shusterman is one of the most widely recognized and published immigration attorneys in the United States, he currently is managing partner of The Law Offices of Carl Shusterman, a seven-attorney immigration law firm based in Los Angeles . Reprinted from Recruiting Trends.