1. Immigration and Hiring
BLR’s Human Resources Training Presentations
Immigration and Hiring
Speaker’s Notes:
This training session will focus on immigration and hiring.
It is against the law to hire illegal aliens.
But the same law also prohibits employers from discriminating against employees and job applicants on the basis of national origin or citizenship status.
You need to be aware of both these requirements of the law and understand how they affect hiring practices and procedures.
/0603 © 2003 Business & Legal Reports, Inc.

2. Goals Be aware of Immigration Reform and Control Act requirements
Know which documents are used to verify identity and work eligibility
Understand your responsibility for ensuring completion of the I-9 form
Know which hiring practices are considered discriminatory
Speaker’s Notes:
First, we will talk about the basic requirements of the Immigration Reform and Control Act.
Next, we will review the forms of documentation that can be used to verify the status of employees.
Then we will discuss your responsibility for ensuring completion of the I-9 form.
We’ll also discuss 10 steps for avoiding discriminatory hiring practices under the immigration law.
Finally, after covering exceptions to the verification rules, recordkeeping requirements, INS inspections, and penalties for violations of the law, we will wrap up the training session with a compliance checklist, two case studies, and a summary and quiz.
/0603 © 2003 Business & Legal Reports, Inc.

3. Immigration Reform and Control Act
Hiring of illegal aliens prohibited
Discrimination prohibited
Applies to employers with 4+ employees
Speaker’s Notes:
The Immigration Reform and Control Act was passed by Congress in 1986 to address issues of immigration and hiring. The Act is administered by the Immigration and Naturalization Service, or INS, which is a part of the U.S. Justice Department.
The Act prohibits employers from hiring illegal aliens.
At the same time, the Act prohibits discrimination in hiring and firing based on national origin or citizenship status.
The Act applies to employers with four employees or more.
/0603 © 2003 Business & Legal Reports, Inc.

4. What the Law Requires Proof of identity
Verification of employment eligibility
I-9 form
Speaker’s Notes:
The Immigration Reform and Control Act requires employers to follow certain procedures when hiring new employees.
Employers must confirm the identity of all new hires.
Employers must also verify the eligibility of new employees to work in the United States.
All new employees must complete the Employment Eligibility Verification Form, also known as the I-9 form, attesting that they are either U.S. nationals or aliens authorized to work in the United States.
/0603 © 2003 Business & Legal Reports, Inc.

5. Inspection of Documents: List A
U.S. passport
Foreign passport with I-551 stamp or Form I-94
Alien Registration Receipt Card
Temporary Resident Card
Employment Authorization Card
Employment Authorization Document
Background for the Trainer:
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) protects immigrants and other workers from employment discrimination based upon citizenship status, national origin, language, accent, or similar factors. OSC says that many incidents of immigration-related employment discrimination are due to employers’ confusion about the documents they can accept for I-9 purposes.
Therefore, it is important for personnel in your organization to know which forms of documentation are acceptable as proof of identity and eligibility to work in the United States.
Employers should provide new employees with copies of Lists A, B, and C, to assist them in providing required documentation.
Speaker’s Notes:
There are a variety of documents that can establish both identity and employment eligibility of an employee. These are commonly known as List A documents. You should inform all job applicants that offers of employment are contingent on producing the proper documents. You should also know that you may not accept photocopies of documents. Employees must present original documents, with the exception of a certified copy of a birth certificate.
List A documents include:
Either an unexpired or expired U.S. passport
An unexpired foreign passport, with I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization
An Alien Registration Receipt Card with photograph, INS Form I-551
An unexpired Temporary Resident Card, INS Form I-688
An unexpired Employment Authorization Card, INS Form I-688A
An unexpired employment authorization document, INS Form I-688B or INS Form I-766
/0603 © 2003 Business & Legal Reports, Inc.

6. Inspection of Documents: List B
Driver’s license or state ID
Federal or local ID
School ID
Voter’s registration card
U.S. military card
Military dependent’s ID
Speaker’s Notes:
The following List B documents establish identity only:
Driver’s license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address.
ID card issued by federal or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address.
School ID card with a photograph.
Voter’s registration card.
U.S. military card.
Military dependent’s ID card.
/0603 © 2003 Business & Legal Reports, Inc.

7. Inspection of Documents: List B (cont.)
U.S. Coast Guard Merchant Mariner Card
Native American tribal document
Canadian driver’s license
School record or report card
Clinic, doctor, or hospital record
Daycare or nursery school record
Speaker’s Notes:
The following are also acceptable List B documents used to verify identity:
A U.S. Coast Guard Merchant Mariner Card
A Native American tribal document
A driver’s license issued by a Canadian government authority
For people under the age of 18 who are unable to present one of the documents we’ve
already mentioned, acceptable forms of List B identification include:
A school record or report card
A clinic, doctor, or hospital record
A daycare or nursery school record
/0603 © 2003 Business & Legal Reports, Inc.

8. Inspection of Documents: List C
Social Security card
Birth certificate
Native American tribal document
U.S. Citizen ID Card
Resident Citizen ID Card
Employment authorization document
Speaker’s Notes:
The following List C documents establish employment eligibility only:
A U.S. Social Security card issued by the Social Security Administration, other than a card stating it is not valid for employment.
An original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States, bearing an official seal or a Certification of Birth Abroad issued by the Department of State, Form FS-545 or Form DS-1350.
A Native American tribal document.
A U.S. Citizen ID Card, INS Form I-197.
An ID card for use of Resident Citizen in the United States, INS Form I-179.
An unexpired employment authorization document issued by the INS.
/0603 © 2003 Business & Legal Reports, Inc.

9. Employees Unable To Produce Documents
Three business days to produce documents
Receipt showing applied for documents
90 days to produce documents
Termination
Background for the Trainer:
Discuss your organization’s policy concerning employees who cannot produce required documents within the limits allowed. Review the proper procedures for terminating employees under these circumstances.
Speaker’s Notes:
What about employees who are unable to produce the required documents?
Employees have three business days to produce documents verifying identity and eligibility to work in the United States.
If they are unable to produce the required documents within three days, they must provide a receipt showing that they have applied for the documents.
They then have 90 days from the date of employment to produce the required documents.
You cannot continue to employ a worker who fails to produce required documents within the time limits established by the law. But it is important to note that these practices must be uniformly applied to all employees who are unable to produce documents within the required time limit, not just to some.
/0603 © 2003 Business & Legal Reports, Inc.

10. I-9 Forms Section 1 completed by employee by Day 1
Section 2 completed by employer by Day 3
Update as necessary
Speaker’s Notes:
An INS Form I-9 must be completed for each time a new employee is hired. The I-9 form includes the lists of acceptable documents—Lists A, B, and C—which we’ve just reviewed.
Each new employee must complete Section 1 of the I-9 no later than close of business on his or her first day of work. The employee’s signature holds him or her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.
You are responsible for ensuring completion of the entire form. No later than close of business on the employee’s third day of employment, you must complete Section 2 of the form. You must review documentation presented by the employee and record document information of the form.
Many work authorization documents must be renewed on or before their expiration date, and the I-9 form must be updated. This process is called reverification. At this time, you must accept any valid documents your employee chooses to present, whether or not they are the same documents provided initially. However, you do not need to see an identity document when the I-9 form is updated.
/0603 © 2003 Business & Legal Reports, Inc.

11. 10 Steps to Avoid Discrimination
1. Treat all people the same
2. Accept the documents an employee presents
3. Accept documents that appear to be genuine
4. Avoid “citizens only” or “permanent resident only” policies
5. Give the same information and application forms to all jobseekers
Speaker’s Notes:
INS recommends that employers take the following 10 steps to avoid immigration-related employment discrimination:
1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.
2. Accept the document or documents that the employee presents. As long as the documents prove identity and work authorization and are included in the list on the back of the I-9 form, they are acceptable.
3. Accept documents that appear to be genuine. Establishing the authenticity of a document is not your responsibility.
4. Avoid “citizen only” or “permanent resident only” hiring policies. In most cases, it is illegal to require job applicants to have a particular immigration status.
5. Give out the same job information over the telephone to all callers, and use the same application form for all applicants.
/0603 © 2003 Business & Legal Reports, Inc.

12. 10 Steps to Avoid Discrimination (cont.)
6. Base employment decisions on job performance
7. Keep the I-9 form on file
8. Verify that you have seen required documents
9. Update the I-9 form as necessary
10. Be aware of who is a citizen
Speaker’s Notes:
6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.
7. Complete the I-9 form and keep it on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is longer. You must also make the forms available to government inspectors upon request.
8. On the I-9 form, verify that you have seen documents establishing identity and work authorization for all employees, U.S. citizens and noncitizens alike, hired after November 6, 1986, the date the Immigration Reform and Control Act was passed.
9. As we mentioned before, I-9s must from time to time be updated. Be sure you keep the information current.
10. Be aware that U.S. citizenship or nationality belongs not only to people born in the United States but also to all individuals born to a U.S. citizen and those born in Puerto Rico, Guam, the U.S. Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island. Citizenship is also granted to legal immigrants after they complete the naturalization process.
/0603 © 2003 Business & Legal Reports, Inc.

13. Good-Faith Compliance
False documents
Conflicting documents
Unauthorized employees
Failures at compliance
Speaker’s Notes:
The law requires you to make a good-faith effort at compliance. INS understands, however, that sometimes circumstances beyond your control will occur.
For example, INS says you must examine documents and must accept them if they appear to be genuine. To do otherwise would be an unfair immigration-related practice under the law. Therefore, if in good faith you verify documents that later turn out to be false, you will not be held responsible. But if a document does not reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it. Instead, you should contact your local Bureau of Immigration and Customs Enforcement office for assistance, or contact the OSC.
Sometimes employees may have documents that disagree. For example, an employee might provide a driver’s license and a Social Security card and then check the box on the I-9 form that indicates the alien registration card has expired. In such cases, it is best to refer the matter to INS and let them sort it out.
What if you follow all the proper procedures and INS later discovers that an employee is not actually authorized to work? You can’t be charged with a violation of the law, but you also cannot knowingly continue to employee this individual.
As long as you make a good-faith effort to comply with the law, any technical or procedural failures at compliance will not lead to penalties. INS must first explain the problem and give you 10 business days to correct it. If you fail to correct the problem within that time, however, penalties can be assessed. We’ll talk more about violations and penalties in a little while.
/0603 © 2003 Business & Legal Reports, Inc.

14. Exceptions to the Verification Rule
“Grandfathered” employees
Rehires
Speaker’s Notes:
There are some exceptions to the rule that the status of all employees must be verified.
Employees hired on or before November 6, 1986, the date the law went into effect, are “grandfathered.” This means you do not have to complete the I-9 form, and you are not required to verify their documentation.
You are also not required to verify the status of employees who have been rehired, as long as they are rehired within three years of having initially filled out an I-9 form.
/0603 © 2003 Business & Legal Reports, Inc.

15. Agency Referrals, Temps, and Independent Contractors
State job service
Union hiring halls
Employment agencies
Temps
Independent contractors
Background for the Trainer:
If you have a collective bargaining agreement with a union and if you hire employees through a union hiring hall, check to make sure who is responsible for verifying status according to the agreement: the company or the union. If he union is responsible, change the bullet point in the Speaker’s Notes to conform to your situation.
Speaker’s Notes:
There also may be circumstances in which you won’t be the one responsible for verifying identity and employment eligibility and having employees complete an I-9.
When applicants have been referred through the state job service, you can accept certification from the state that the job service has made the required verification.
You are, however, responsible for verifying the status of employees referred through the union hiring hall.
Employment agencies often designate the hiring employer as the one responsible for verifying status. In such cases, we must verify documents and complete the I-9 form, and the agency will request a copy of the I-9 from us.
Verification of status and I-9 forms for temporary workers are the responsibility of whoever pays the worker. Contracts for such services should specify responsibility.
The same is true for independent contractors, who in most cases are responsible for verifying the status of their own employees.
/0603 © 2003 Business & Legal Reports, Inc.

16. Recordkeeping Retain I-9 forms for three years
Keep consistent copies of identification documents
File I-9 forms separately
Record name changes
Background for the Trainer:
To avoid potentially discriminatory pattern or practice violations of the law, multiplant operations should not centralize I-9 recordkeeping.
Speaker’s Notes:
Keeping accurate and organized records allows the organization to effectively manage all necessary documentation.
I-9 forms and related documentation must be kept for three years after the worker is hired or for one year after termination, whichever is longer.
You are not required to keep copies of employees’ identification. However, if you do keep copies, you should do so consistently for all employees, and these copies should be filed with the I-9 form.
Because I-9s contain age and citizenship information, they should be kept in a locked file, separate from other personnel files.
Employee name changes should be recorded on the I-9 by lining through the old name and printing the new name along with the reason for the change—for example, marriage. The old name should not be erased. And changes should be dated or initialed.
/0603 © 2003 Business & Legal Reports, Inc.

17. INS Inspections Three days’ notice given
No warrant or subpoena required
ESA also authorized to inspect I-9s
Speaker’s Notes:
Although INS does not require employers to send in I-9 forms, it does require employers to keep them on file, and INS may inspect your files at any time.
If the INS wishes to inspect our I-9s, they will generally provide at least three days’ notice.
INS does not need a warrant or subpoena to make such inspections.
Investigators from the U.S. Department of Labor’s Employment Standards Administration, or ESA, are also authorized to inspect I-9s.
/0603 © 2003 Business & Legal Reports, Inc.

18. Penalties Civil penalties Criminal penalties Contractors debarred
Speaker’s Notes:
The law imposes both civil and criminal penalties for violation of the rules.
Employers may be fined for hiring or continuing to employ unauthorized aliens, failing to comply with I-9 requirements, or not requiring identification.
Employers may also be subject to criminal prosecution for engaging in a pattern or practice of knowingly hiring or continuing to employee aliens, engaging in fraud or false statements, or misusing visas, immigration permits, or identification documents.
Federal contractors that violate the law can also be denied contracts for one year.
/0603 © 2003 Business & Legal Reports, Inc.

19. Compliance Checklist Interviews Lists A, B, and C
Inspection of documents
Insufficient documentation
Speaker’s Notes:
Now let’s briefly review the information we’ve covered by running through this immigration and hiring compliance checklist. The answer to all the questions should be yes.
Do you tell all applicants during the interview that offers of employment are contingent on producing proper documents verifying identity and eligibility to work in the United States?
Do you provide new hires with lists of acceptable documents to verify status?
Do you accept the documents the employee provides as long as they appear genuine?
Do you inform employees who do not have proper documentation that they have three business days in which to produce the documents or a receipt showing that they have applied for the necessary documents?
/0603 © 2003 Business & Legal Reports, Inc.

20. Compliance Checklist (cont.)
I-9–employees
I-9–employers
I-9 updates
Recordkeeping
Speaker’s Notes:
Do you require all new employees to complete Section 1 of the I-9 form and sign and date it?
Do you complete Section 2 of the I-9 form and ensure that the entire form has been completely and correctly filled out?
Do you update I-9 forms as necessary, such as when an employee’s work authorization documents are renewed?
Do you keep all I-9 forms on file for three years after the date of employment or one year after the person’s employment is terminated, whichever is longer?
/0603 © 2003 Business & Legal Reports, Inc.

21. Case Study: Questionable Documents
Employee submits identity documents
Employer examines documents
Documents appear suspicious
Speaker’s Notes:
I’m going to read you a short case study. It’s titled “Questionable Documents.” It’s about an employer that had doubts about the authenticity of the documents submitted by a new employee. I want you to think about the situation as I read it, because afterwards I’m going to ask you to decide what the employer in this case should do. Let’s begin.
A new employee submits documents to prove his identity and eligibility to work in the United States.
As required by law, the employer examines the documents.
The employer has seen many different kinds of documents over the years and has serious doubts about the authenticity of these. They don’t look like the documents the employer has seen before. Their quality and general appearance are suspicious.
/0603 © 2003 Business & Legal Reports, Inc.

22. Case Study: Comment Refuse to accept documents
Ask for further documentation
Contact the authorities
Termination
Speaker’s Notes:
What should the employer in this case do?
If the documentation presented by the employee does not reasonably appear to be genuine, or if it doesn’t relate to the employee who presents it, the employer must refuse to accept it.
The employer should then ask for other documentation from the lists of acceptable documents.
If the employee cannot produce acceptable documentation, the employer should contact the local office of the Bureau of Immigration and Customs Enforcement or the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) for assistance.
If it turns out that the documents are false or do not relate to the employee, the employee must be terminated. An employer cannot continue to employee someone who cannot present documentation that meets the requirements.
/0603 © 2003 Business & Legal Reports, Inc.

23. Case Study: Application Denied
Applicant speaks with heavy accent
Applicant is well qualified for the job
Employer asks about citizenship
Employer asks for documentation
Employer rejects application
Employer hires U.S. citizen for the job
Speaker’s Notes:
This case is titled “Application Denied.” It’s about an employer that denies the application of a foreign job applicant. Once again, I want you to think about the situation as I read it, and then we’ll analyze what the employer did right or wrong.
A job applicant speaks with a heavy accent and wears foreign-looking clothes.
Nevertheless, the applicant is well qualified for the job. In fact, she is the most qualified applicant.
The employer asks the applicant of which country she is a citizen. The applicant names the country but says that she plans to stay in the United States and apply for citizenship.
Although the employer has not asked other applicants for documentation, the employer asks to see documentation of her eligibility to work in the United States. After all, the employer figures, there’s no point in continuing with the hiring process if she can’t produce proper documentation. The applicant, however, produces a temporary work permit.
The employer rejects her application.
The employer then hires a qualified U.S. citizen for the job.
/0603 © 2003 Business & Legal Reports, Inc.

24. Case Study: Comment Don’t single out foreign-appearing applicants
Don’t base hiring decision on non-job- related factors
Don’t ask about citizenship during interview
Don’t ask for documentation until job offer made
Don’t reject applicants on the basis of national origin or citizenship
Speaker’s Notes:
Did the employer do the right thing under the immigration laws? The answer is no. In fact, this employer basically did everything wrong. It engaged in discriminatory practices during the hiring process and appears to have rejected this employee’s application because of her citizenship.
First of all, the employer seems to have singled out this applicant for special treatment on the basis of her accent and foreign-looking clothes. Employers should treat all applicants and applications the same.
Despite her obvious qualifications to perform the job duties, the employer is not satisfied to base its employment decision on job-related qualifications.
Instead, the employer proceeds to ask about the employee’s citizenship. This is a potentially discriminatory question and therefore inappropriate during an job interview.
The employer then asks this applicant for documentation of eligibility to work in the United States even though it doesn’t ask other applicants, who appear to be U.S. citizens, for documentation. Employers may ask applicants for documentation but only if they ask all applicants for documentation, regardless of appearance. However, it is preferable not to ask for documentation at all until an offer of employment has been made.
The employer rejects this applicant despite her qualifications. Instead, the employer hires a U.S. citizen. Although this person is qualified for the job, he is not more qualified than the applicant who was rejected. A reasonable person might conclude that the reason for the rejection is related to her national origin or citizenship. And that is illegal employment discrimination under U.S. immigration law.
/0603 © 2003 Business & Legal Reports, Inc.

25. Goals
Be aware of the basic requirements of the Immigration Reform and Control Act
Know which documents may be used to verify identity and eligibility to work
Understand your responsibility for ensuring completion of the I-9 form
Recognize hiring practices and procedures that may be considered discriminatory under the immigration laws
Speaker’s Notes:
Are there any questions concerning immigration and hiring?
Let’s wrap up this training session with a summary and a quiz.
/0603 © 2003 Business & Legal Reports, Inc.

26. Summary Immigration law prohibits hiring illegal aliens
It also prohibits discrimination based on national origin or citizenship
All new hires must produce documents to verify identity and eligibility to work in the United States
New hires must also complete Section 1 of the I-9 form and sign and date it
/0603 © 2003 Business & Legal Reports, Inc.

27. Summary (cont.)
You must complete the rest of the I-9 form and ensure that all required documentation has been verified
Completed I-9 forms and copies of documentation should be kept on file and updated as necessary
/0603 © 2003 Business & Legal Reports, Inc.

28. Quiz
1. The Immigration Reform and Control Act prohibits employers from taking two actions when hiring new employees. What are they?
2. An expired foreign passport is an acceptable List A document, establishing both an employee’s identity and eligibility to work in the United States. True or False
3. List B documents establish only eligibility to work in the United States. True or False
Background for the Trainer:
Remind participants that the quiz is to encourage further discussion and to ensure that everyone understands what was discussed.
/0603 © 2003 Business & Legal Reports, Inc.

29. Quiz (cont.)
4. What action should you take if a new employee is unable to produce proper documentation?
5. I-9 forms should be completely filled out by the employer and mailed to INS within three business days of hiring a new employee. True or False
6. If documents that you accepted as genuine later turn out to be false, you may be liable for penalties under the law. True or False
/0603 © 2003 Business & Legal Reports, Inc.

30. Quiz (cont.)
7. Name three exceptions to the rule that employers must verify the status of all employees.
8. How long do you need to keep I-9 forms?
9. I-9 forms should be kept in the employee’s personnel file. True or False
10. Who is responsible for verifying the status of temps and independent contractor’s employees?
/0603 © 2003 Business & Legal Reports, Inc.

31. Quiz Answers
1. Employers are prohibited from hiring illegal aliens and from discriminating on the basis of national origin or citizenship.
2. False. A foreign passport is an acceptable List A document, but it must be current and have an I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization.
3. False. List B documents establish identity only. List C documents establish eligibility to work. And List A documents establish both.
/0603 © 2003 Business & Legal Reports, Inc.

32. Quiz Answers (cont.)
4. Under the law an employer cannot continue to employ an employee who cannot present documentation that meets the requirements. Employees have three business days to produce required documents or a receipt showing that they have applied for the documents. Employees who have a receipt have 90 days to produce documents.
5. False. Employees must fill out Section 1. Employers fill out the rest of the form. Then the employer must keep the forms on file.
/0603 © 2003 Business & Legal Reports, Inc.

33. Quiz Answers (cont.)
6. False. INS will not penalize you as long as you made a good-faith effort to examine documents, and they appeared to be genuine. If a document appears on its face to be false, however, you cannot accept it. You should contact the local office of the Bureau of Immigration and Customs Enforcement or the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
/0603 © 2003 Business & Legal Reports, Inc.

34. Quiz Answers (cont.)
7. You do not need to verify status for employees hired before November 6, 1986, employees who have been rehired within three years of filling out an I-9, and employees hired from the state job service with certification that verification has been made.
8. You must keep I-9s for three years from the date of hire or one year after termination, whichever is longer.
/0603 © 2003 Business & Legal Reports, Inc.

35. Quiz Answers (cont.)
9. False. Since these forms contain information about an employee’s citizenship and age information, they should be kept in a locked file, separate from other personnel files.
10. The person who pays a temp or contractor’s employee is responsible for verifying status. Generally, this will be the temp agency or the independent contractor, not the employer.
/0603 © 2003 Business & Legal Reports, Inc.