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How Does Immigration Law Affect My Business?

image for Pattanaphong Khuankaew / Getty Images
Pattanaphong Khuankaew / Getty Images

Immigration is a hot-button issue. For small businesses, concern about who’s responsible for making sure employees are legally allowed to work makes the issue even more charged.

“It’s a really, really easy process for small businesses,” said Bob King, an employment attorney. “The question is, ‘Can the employee provide the identification required on the I-9 form?’”

The I-9, which is a form all employers are required to fill out when hiring an employee, requires a valid U.S. passport or a combination of other forms of identification including a driver’s license, social security card, birth certificate or U.S. Citizen Card. The form requires that employers view an original copy of each document and verify that it was presented.

“The law says businesses must use reasonable judgment in determining whether the identification is legitimate,” said King, who founded a California law firm, Legally Nanny, which specializes in household legal and tax issues. “They do not need to be CSI and put it under a microscope.”

“The law is very clear in terms of the responsibility of business owners,” said Bernhard Lefson, a SCORE advisor who spent 19 years as a senior-level human resources executive. “They are obligated to complete I-9 forms with proper documentation, regardless of the size of the employer.”

The Department of Homeland Security is attempting to get better control over the process by providing employers with an online tool to check employee documents. The program, called e-Verify, allows users to enter a potential employee’s social security number and determine if it matches the name provided by the employee. E-Verify is currently optional.

Small business associations want to make sure it stays that way.

“We understand the need for national immigration reform,” said Molly Brogan, vice president of public affairs for the National Small Business Association (NSBA), a Washington, D.C.-based non-profit which represent 150,000 small businesses. “We have issues with it when it involves penalties for small businesses. We think it’s unfair,” Brogan told BusinessNewsDaily in a phone interview.

While there are currently no penalties in place and e-Verify remains optional, newly published rules by the DHS allow employers to electronically complete the I-9 Form. The final rule permits employers to complete, sign, scan, and store the Form I-9 electronically, according to the NSBA .

The rule provides modifications to an interim final rule promulgated in 2006 and clarifies the following:

  • employers must complete a Form I-9 within three business (not calendar) days of hire;

  • employers may use paper, electronic systems, or a combination of paper and electronic systems;

  • employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;

  • employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and

  • employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.