In my "Consulta Migratoria" column this week published online by several impreMedia publications including LaOpinión.com, I explain how to avoid acts of discrimination during employment verification.
Here is my column:
As part of an effort to monitor who is working legally in the country, the U.S. government has implemented the employment verification system, put in place since the last immigration reform in 1986.
In recent years, the use of the system has been strengthened and fines have been increased for employers who hire undocumented workers. Part of the hiring process is the completion of Form I-9, which requires verification of identity and employment authorization for all new employees, whether or not they are U.S. citizens.
Last week, the U.S. Citizenship and Immigration Services (USCIS) announced that a new version of Form I-9 went into effect and will no longer accept previous versions. The new Form I-9 (Employment Eligibility Verification) must be used for all new hires and reverification of employment authorization.
The revision date for the new Form I-9 is March 8, 2013. That date is printed in the lower left-hand corner of the form. Employers will not have to complete a new Form I-9 for existing employees if they have a previously completed form on file.
There is an updated Spanish version of Form I-9 on the USCIS website, but it can only be used in Puerto Rico. Within the United States and its territories, the Spanish version can be used for reference only, as the Form I-9 must be completed in English.
Every employer is required to complete and retain Form I-9 for each person on its payroll in the United States. Updated forms are available online at www.uscis.gov/I-9.
By law, it is the employer's responsibility to verify that every employee in his or her company is authorized to work legally in the United States. To do so, you must examine and accept original documents from the employee that reasonably appear to be genuine. This does not authorize you to ask for more documents that are not required by law.
Every employee should be aware that there are federal laws that prohibit discriminatory practices during the search, hiring, employment eligibility verification process (known as Form I-9), or termination of persons authorized to work in the United States.
It is important to know what guidelines hiring managers must follow to avoid being a victim of discrimination and to understand what their rights are.
An employer must treat everyone the same when advertising a job, during the hiring process, or terminating an employee. It must provide the same job information over the phone to every caller and give the same job application to every applicant.
If you provide legitimate documents that prove your identity and work authorization, such as those listed on the reverse side of Form I-9, an employer cannot require further documentation. For example, if a person is authorized to work in the U.S., they cannot be required to have U.S. citizenship or permanent residency, unless required by federal law or contract.
If an employer will need to re-verify an individual's employment authorization, it must accept any valid documents, even if they are not the same ones the employee presented when hired.
All termination decisions must be based on the employee's job performance or behavior and not on the employee's appearance, accent, name, or citizenship.
To protect immigrants authorized to work here from employment discrimination, the U.S. government established the Office of Special Counsel for Unfair Practices Relating to Immigrant Status. This office has a hotline to advise employers on how to avoid discriminatory practices (1-800-255-8155), and another for employees to report such abuses (1-800-255-7688).
Undocumented immigrants also have certain labor rights. If you work, you have the right to be paid, regardless of your legal status. If you work and are not paid, file a complaint with the U.S. Department of Labor at 1-866-487-9243.
