Toeing the line on hiring - includes a quiz on the 1986 Immigration Reform and Control Act

Nation's Business, Dec, 1994 by Rosalind Resnick

For veterinarian Thelbert Childers, learning about federal immigration law proved expensive.

Four years ago, Childers, the owner of Lovers Lane Animal Hospital in Dallas, got an unexpected visit from the Immigration and Naturalization Service. The INS agent asked to see the animal hospital's file of I-9 forms, which employers must complete to establish their employees' right to work in the United States. Childers, who employs 30 workers at the hospital, says he had no idea what the agent was talking about.

His ignorance cost him plenty: The federal government slapped him with a $7,500 fine, which was later reduced to $5,900--even though he had never hired an illegal worker. "It cost too much to fight," says Childers.

Eight years ago, Congress passed the Immigration Reform and Control Act (IRCA), which bars hiring of illegal immigrants but also imposes penalties on employers who discriminate against workers on the basis of national origin or citizenship. Today, some small businesses still remain in the dark about their legal responsibilities under the law. The INS says 89 percent of the 8,000 businesses it surveyed were in compliance with I-9 regulations in 1992, compared with 50 percent in 1988. The survey didn't break the companies down by size.

Because small companies, unlike large corporations, typically get along without a personnel department, some small firms fail to abide by the law out of ignorance or reluctance to take on additional paperwork. At the same time, some small businesses miss out on opportunities to put highly qualified foreign workers on the payroll because the firms are unaware of the wide variety of perfectly legitimate ways to obtain legal status for these prospective employees.

Before enactment of the 1986 immigration law, which shifted the burden of compliance to employers, companies that hired illegal immigrants were not penalized. Now, employers are barred from "knowingly hiring, recruiting, or referring for a fee any alien not authorized to work in the United States." And unlike some other federal laws that exempt small firms, the immigration law applies to companies with one employee or more.

Lawrence Lataif, a business-immigration specialist in the Miami office of the Chicago law firm of McDermott Will & Emery, cautions employers to "treat every immigration [I-9 form] filing seriously." While employers shouldn't be intimidated by the process, it's important to remember that, like an income tax return, the I-9 is a formal filing under oath with a government agency and carries serious civil and criminal penalties for deliberate misrepresentations.

Employers who break the law face fines of $100 for each offense plus punitive fines of up to $10,000 for repeated violations. To abide by the law, employers have to verify the legal work status of every new employee by completing the I-9 form, which is one of the statute's trickiest areas.

The law requires an employer to verify a new employee's work eligibility within three days of hiring. A worker must present one or more documents listed on the back of the I-9 form to establish his or her identity and eligibility to work legally.

Documents establishing identity and eligibility fall into three categories. In the first, identified as List A, are these documents, which satisfy both the identity and the eligibility requirements:

* A U.S. passport (unexpired or expired).

* A certificate of U.S. citizenship.

* A certificate of naturalization.

* An unexpired foreign passport with an I-551 stamp or an attached INS Form I-94 indicating unexpired employment authorization.

* An alien registration card with photo.

* An unexpired temporary-resident card.

* An unexpired employment-authorization card.

* An unexpired re-entry permit.

* An unexpired refugee travel document.

* An unexpired employment authorization document issued by the INS that includes a photo.

Employees who do not have any of these documents must show two separate documents, one establishing identity, the other establishing employment eligibility.

Documents on List B, establishing only identity, are:

* A driver's license or an identification card issued by a state or outlying possession of the United States.

* An ID issued by a federal, state, or local government agency or entity.

* A school ID with photo.

* A voter's registration card.

* A U.S. military card or draft record.

* A military dependent's ID.

* A U.S. Coast Guard merchant mariner card.

* A Native American tribal document.

* A Canadian driver's license.

(The following three documents can be used by persons under age 18 who are unable to present any of the ID documents listed above: a school record or report card; a record from a clinic, hospital, or doctor; a day-care or nursery-school record.)

Documents on List C, establishing only employment eligibility, are:

* A Social Security card (except a card that states that it is not valid for employment purposes).

* A certification of birth abroad issued by the U.S. State Department.

* An original or certified copy of a birth certificate bearing the seal of a state, county, municipal authority, or other U.S. possession.