Given the second Trump administration’s recent Executive Orders related to immigration policy it is easy for employers to get confused, or think it is their responsibility to enforce immigration policy. It is not. Employers, and their Human Resources (HR) departments, have a responsibility to continue to comply with existing employment laws and guidance from The Department of Homeland Security (DHS) on verifying the identity and employment authorization of each person they hire, as well as ensuring fair and ethical hiring practices.
Employers should confirm work eligibility status of job applicants. This is typically done during the application phase of the hiring process, thus removing the potential for it to be asked during interviews. Asking the question during interviews may lead to discussion that is inappropriate, allows for bias in the hiring decision, or causes potential legal problems. Most Applicant Tracking Systems and job posting platforms allow this to be added as a qualifying question on the job application, removing the applicant from the process entirely if they indicate they cannot work in the United States.
Once a decision is made to hire someone, employers are responsible, regardless of size, to ensure they are complying with DHS regulations and also requiring the new hire to complete the form I-9 completely and accurately. An I-9, along with supporting documentation, must be on file for all employees. This should be handled within HR, or the designated department, to ensure confidentiality.
Additionally, I-9s and supporting documentation must be retained, and stored separately, for all previous employees. For additional information on complying with form I-9, employers should contact the US Immigration and Customs Enforcement’s IMAGE program. In addition to following DHS regulations and using form I-9, employers may utilize the E-Verify system to ensure compliance. E-Verify is an Internet-based system that compares information entered by an employer from an employee’s Form I-9 to records available to the DHS and the Social Security Administration to confirm employment eligibility.
It is important to remember the employer’s responsibility is to verify the identity and employment authorization of each person hired regardless of status. An applicant failing to comply with all parts of the I-9 or E-Verify may not be hired. Employers are encouraged to continue these practices and stay away from discussing eligibility and immigration status with applicants during the interview process.
Risk Strategies is closely following developments in this space. Contact your Risk Strategies account team with any questions or contact us directly here.