Employers have a lot of responsibilities when it comes to hiring employees. Doing an online search of their name isn’t enough. Employers have the responsibility to make sure they’re not just hiring employees who are qualified for the position but also who are going to be safe and not pose a threat to other employees or customers.
Employers also have a responsibility to hire people who can work legally in the United States, and as part of that, they may have to use e-Verify, which we talk about below.
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Is It Illegal to Hire Undocumented Immigrants?
First, according to Ice, the federal agency responsible for immigration worksite enforcement, if you’re an employer, you could face legal problems if you knowingly employ an undocumented immigrant worker. Even if you’re a small business and you treat your employees with fairness, you should operate under this assumption.
As an employer, you’re required to confirm every new hire’s work authorization when you hire them, using Form I-9.
You’re not reasonably expected to be an expert on documentation needed to establish authorization to work, however. There has to be a sense of balance because employers can also face penalties for being too stringent in how they check documents or insist on a certain document, like a green card. The rules state employers should accept documents from the I-9 list of acceptable documents.
Form I-9 is used to verify identities and employment authorizations for everyone who’s hired to work in the U.S. All employers have to compete properly every time they hire someone, whether a citizen or noncitizen.
At this point, the employee presents acceptable evidence of identity, and the employer has to make sure they reasonably appear to be genuine. They record the information on the I-9 for the employee.
What Is E-Verify?
If you’re an employer, then you might use E-Verify. This online-based system compared information from Form I-9 to available records from the U.S. Department of Homeland Security and Social Security Administration, with the goal of confirming identity.
Participation in E-Verify is required by employers in certain situations based on contracts or local laws, and a lot of employers voluntarily choose to participate.
If an employer is going to participate in E-Verify, they have to post a sign letting employees know about that participation.
The process begins when the participant creates a case in E-Verify. They’re using the information from the I-9, and they have to do it no later than the third business day after someone starts working for pay.
The Results
The case results from E-Verify indicate if the information provided on an I-9 matches the federally available information.
If the case result is Employment Authorized, then it means there’s a match between available records.
The employee would be authorized to work, and as an employer, no other action is required by you.
If the result comes back as a DHS or SSA Tentative Nonconfirmation, this is a mismatch. This means that the information you entered doesn’t match the records available. That doesn’t necessarily mean that the employee isn’t authorized to work in the U.S.
If the employee takes action to deal with the mismatch, their employer can’t take adverse action against them. As an employer, you could terminate the employment if the employee didn’t take action to resolve the mismatch or if you get back a Final Nonconfirmation result.
Other possible outcomes include a Case in Continuance, which means the employee contacted DHS or SSA, but more time is needed for determining a final result, and a Close Case and Resubmit, meaning a new case has to be created for the employee.
States That Require E-Verify
There are currently 22 states requiring E-Verify use for at least some categories of employees. A lot of states will require it for new hires after a given date and only for public employees. The states that have some level of legislation related to E-Verify include:
- Alabama
- Arizona
- Colorado
- Florida
- Georgia
- Idaho
- Indiana
- Louisiana
- Michigan
- Minnesota
- Mississippi
- Missouri
- Nebraska
- North Carolina
- Oklahoma
- Pennsylvania
- South Carolina
- Tennessee
- Texas
- Utah
- Virginia
- West Virginia
Hiring Independent Contractors
If you, as an employer, hire independent contractors, you’re not required to confirm anyone’s work authorization. However, if you have a reason to know or do know that an independent contractor isn’t authorized to work in the U.S., you could be held liable. U.S. laws on who’s considered an independent contractor are also strict.
If you hire an undocumented worker, there are civil and criminal penalties that are possible.
If there’s a pattern of you hiring undocumented workers, you could face jail time.