The Immigration Dilemma: Ways to Protect Yourself from Liability Under US Immigration Laws

by Joseph "Trey" L. Wood, III

Under the Immigration Reform and Control Act (IRCA) employers are often placed between a rock and a hard place when confronted with an employee who may be unauthorized to work in the United States. This article will explain what employers should do in situations where they suspect their employees may not be authorized to work in this country.

SITUATION 1: THE ROCK
In cases with suspicious circumstances or employee fraud, an employer is not liable for making further investigations of an employee's status. However, employers risk liability if they unreasonably investigate an employee's authorization status by requesting documents and verification without reason. To illustrate, the most common actions which may result in liability under IRCA are:

• A request for specific documentation can be considered "document abuse" if the request is made for the purpose of discriminating against an individual on the basis of national origin or citizenship status

• An employer's refusal to accept documents, during the employment eligibility verification procedure, that are acceptable verification documents under the law, and that appear on their face to be genuine

• Re-verifying a permanent resident only because his or her green card has expired

SITUATION 2: THE HARD PLACE
Despite the fact that employers may risk liability if they investigate employees without reason, employers still have a duty under IRCA to review work-authorization documents for fraud. Employers are also liable under IRCA for "knowingly" hiring unauthorized aliens, or for continuing to employ such aliens after learning that they are not authorized to work. Employer liability is not limited to those situations where it has actual knowledge that an employee does not have work authorization. "Knowledge" is defined under IRCA to include situations where the employer deliberately fails to investigate suspicious circumstances. The following are examples of constructive knowledge:

• The employer fails to complete Form I-9 and it turns out the employee is unauthorized to work

• The employer continues to employ the employee without re-verifying his or her employment eligibility after the expiration date for employment eligibility listed by the alien in Section 1 of the I-9 form

• The employer has information available to it that indicates the employee is not authorized to work

AVOIDING THE ROCK AND THE HARD PLACE
A general rule of thumb is that employers should not make further inquiries regarding an employee's work authorization based on mere rumors around the workplace. However, if there is conflicting documentation or reliable information becomes available to the employer indicating immigration irregularities, further inquiries are permissible. Employers should remember that they are not expected to be detectives ferreting out all unauthorized workers from the work place. Therefore, when an employee presents documents evidencing employment eligibility from the acceptable list of documents and those documents appear genuine, employers can consider those documents as proof of the employee's eligibility to work in the United States. Absent clear evidence to the contrary, the employer should avoid inquiring further about the employment eligibility of a worker.