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What Is My Business In New Jersey Required To Do To Avoid Hiring Illegal Immigrants?

  • By: David Rich
  • Published: July 27, 2010

In the last 10 months, immigration officers have imposed almost $640,000 in fines on 13 employers in New Jersey who failed to make certain that their employees were authorized to work in the United States.  That amount is about 14 times the fines imposed on employers in New Jersey in all 12 months of fiscal year 2009, when the fines totaled $44,728.  Four employers were penalized in 2009.

This dramatic increase in fines results from a new enforcement strategy by the U.S. Immigration and Enforcement agency of the U.S. Department of Homeland Security: dispatching federal agents to scour businesses’ records for illegal immigrant employees.

Section 274A of the federal Immigration Control and Reform Act of 1986 (the “ICRA”), as amended, 8 U.S.C. § 1324a, and the implementing regulations, 8 C.F.R. §§ 1324a.1 – 1324a.14, require employers to complete a Form I-9 for all newly hired employees to confirm identity and authorization to work in the United States.  The worker completes Section 1 of the Form I-9, the employer representative completes Section 2, and Section 3 is used if re-verification of work-authorized status is mandated.  The List of Acceptable Documents, from which workers can choose papers to provide to the employer to verify their identity and employment authorization, is divided into three sections:

  • List A documents, such as a U.S. Passport, confirm identity and employment authorization;
  • List B documents, such as a driver’s license issued by a state, confirm identity only; and
  • List C documents, such as a birth certificate issued within the U.S., confirm employment authorization only.

To carry out the I-9 process, the employee must provide and the employer must examine the employee’s selection of either one List A document, or a combination of one List B and one List C document.  The employer is prohibited from requesting that the employee provide a particular document or combination of documents.

The order and timing of completion of the three above-mentioned sections of the Form I-9 is as follows:

  • On or prior to the first day of employment (but after the decision to hire has been made), the worker must complete Section 1 of the Form I-9.  In particular, he or she must indicate his or her status by checking one of four status boxes, indicating that he or she is a citizen of the United States, a noncitizen national of the U.S., a lawful permanent resident (green card holder), or an alien authorized to work until a specified expiration date.  The worker then signs and dates Section 1.
  • Within three business days after the first day of employment, the employer’s representative must complete Section 2 of the Form I-9.
  • In order to complete Section 2, the employer must examine the worker’s original verification documents.  Photocopies or faxed copies are unacceptable.
  • If the worker checked the fourth status box in Section 1, the employer must re-verify employment authorization before it expires.  The employer does so on Section 3 of the I-9.

It should also be noted that, in May 2010, legislators introduced a bill in the New Jersey State Senate, S1842, and a bill in the New Jersey State Assembly, A2600, which would require New Jersey employers to verify the legal status of their new hires using the federal government’s voluntary E-Verify program.  E-Verify is a free, web-based program which allows employers to electronically verify newly hired employees’ work authorization documents.  The New Jersey bills have been referred to the Labor Committees of the State Senate and the State Assembly, respectively.

David Rich, Esq.

David Rich David S. Rich is the founding member of the Law Offices of David S. Rich, LLC,
a Manhattan Employment and Business Litigation Law Firm, in New
York City and in Englewood Cliffs, New Jersey...View Profile