Answers to the Top 5 Questions about Undocumented Workers in the Workforce

Undocumented worker article

According to the Department of Homeland Security, undocumented immigrants make up 3.5% of the United States’ population, and that number is steadily growing. Many of these individuals and families come to the USA in the hope of finding work, but there are many laws that keep them from doing so. Today, we answer five of the top questions that you need to know to keep you a safe, fair, and legal employer.

What documents are required by the Immigration Reform and Control Act (IRCA) for new hire verification?
Employees must provide employers with documents that show (1) identity and (2) employment eligibility. Employees must also complete Form I-9 attesting under penalty of perjury that they are either U.S. nationals or aliens authorized to work in the United States. When completing Section 2, either one “List A” document or one each of documents from “List B” and “List C” must be provided. “List A” documents include U.S. passports and prove both identity and employment eligibility; “List B” documents include state-issued driver’s licenses, which prove only identity; and “List C” documents, such as a Social Security cards, prove only employment eligibility.[1] Any discrepancies in these documents aren’t immediate grounds for termination, but specific actions must be taken at that point to validate employment status.

Am I at risk of fines or other legal action if a worker uses fake documents to get hired?
As long as you follow proper procedure when obtaining verification documents and completing Form I-9, you will not be held legally responsible (in the form of fines or sanctions) if it turns out that the submitted documents were forgeries. This is because you are still lawfully required to be non-discriminatory when hiring, and thus SHOULD NOT verify any employee any further than you would another. If you are suspicious of a new hire and decide to look deeper into their information, you are breaking the law regarding discriminatory hiring practices. Be diligent, but make sure to resolve issues the right way and only insofar as they pertain to completing Form I-9.

What is E-Verify, and am I required to use services like it or Social Security Number Verification Service to validate new hires?
It is illegal to use SSNVS to verify SSNs for work eligibility, as it only verifies that the information is correct relative to completing IRS Form W-2.[2] Using SSNVS may subject employers to civil and criminal penalties due to violation of discrimination and privacy policies. According to United States Citizenship and Immigration Services, E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility, and it’s use specific to you as an employer is a bit more of a grey area. Assuming that a company is not a federal contractor, does not expect to become one, and does not operate in one of the states that require the use of E-Verify, then the use of E-Verify is strictly optional. Thus, this is a matter where you should always check with an attorney to see if E-Verify is an option for you, as the state laws are constantly changing.

Can undocumented workers get workers’ comp?
Barring a few specific cases and the state of Wyoming, undocumented workers are almost always eligible for workers’ comp. [4] Many states’ statutes specifically define employee as “any person…lawfully or unlawfully employed”, as is the case in Arkansas. [5] This means that regardless of whether documents were forged or you unintentionally hired an undocumented worker, once that individual is under your employ they are eligible for compensation as any other employee is. The IRCA cannot be used by an employer as a defense against a claim, as it only regulates hiring practices in regards to verification. Some cases have denied compensation for specific services, but statistically, the courts treat undocumented workers as any other contracted employee once they enter your employ.

Am I better off having a “citizen only” or “permanent residence only” hiring policy?
In most cases, it is illegal to require that an applicant have a certain immigration status, as this isn’t always an indicator of ineligibility to work, and it is viewed as discriminatory to have this policy. It is very important to treat each applicant fairly and to be consistent from employee to employee. If you follow the steps required by the IRCA, being careful not to overreact to discrepancies or fall behind deadlines, you will not be at risk of legal action if it is later found that the applicant forged documents or lied about information.

It may seem daunting, but if you familiarize yourself with the IRCA’s requirements and procedure, you are not at risk of legal action. Fairness is just as important as diligence when it comes to following both immigration and discrimination law, and navigating the area between the two is the key to staying clear of fines and sanctions.

Writer: Shawn Steele


[1] § 274a.2(b)(1)(v).

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