Immigration Law Requirements
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43
Since 1987, every employer in the United States has been required to confirm the identity of all new employees and verify that they are either American citizens or aliens legally authorized to work in this country. These rules, enacted by Congress in the Immigration Reform and Control Act of 1986 as a means of stemming the tide of illegal immigration, represent one of the most comprehensive reporting schemes ever adopted by the federal government.1 All churches and religious organizations are subject to the new rules. One federal district court ruled that churches can be forced to comply with the immigration reporting requirements even if compliance would violate their religious convictions.2
The law requires employers to do the following five things:
1. Have all employees hired on or after June 1, 1987, complete the top half of Form I--9 on or before the date they start work. This form is available from the Immigration and Naturalization Service (INS) or the Department of Justice.
2. Check original documents establishing every new employee's identity and eligibility to work. These documents ordinarily will be an original state driver's license plus either an original social security number card or an original or certified birth certificate. Employees must furnish the required documentation within three business days of starting work. An employee unable to produce the required documentation within three days may produce a receipt showing that he or she has applied for the required documents. The employee may then produce the documents within 21 days of starting work. Obviously, several job applicants will be unable to retrieve the required documentation even within a 21--day period. Employers therefore may want to condition the formal hiring of an employee upon compliance with the Form I--9 documentation requirements. Employers may make copies of the original documents provided that the copies are made only for the purpose of demonstrating compliance with the verification requirements and the copies are maintained with the relevant Form I--9.
3. Complete the bottom half of Form I--9, by certifying that you inspected the original documents verifying the employee's identity and eligibility to work (discussed in the preceding paragraph).
4. Retain every Form I--9 for at least three years. If you employ a person for more than three years, you must retain the form until one year after the person leaves your employment.
5. Present a Form I--9 for inspection to an Immigration and Naturalization Service (“INS”) or Department of Labor officer upon request. Note that the Form I--9 is not filed with the government. Rather, it is retained by the employer for presentation to an appropriate government representative upon request.
The new reporting requirements do not apply to (1) persons hired before November 7, 1986; (2) persons hired after November 6, 1986, who left your employment before June 1, 1987; or (3) persons who are self--employed.
The new law also prohibits employers having four or more employees from discriminating against any individual (other than an alien not legally authorized to work) in hiring because of that individual's national origin.
Violations of these requirements may result in monetary penalties. The penalties for violating the law depend upon the nature of the violation. Employers who knowingly hire unauthorized employees may be fined between $250 and $2,000 per unauthorized employee for a first violation; $2,000 and $5,000 per unauthorized employee for a second violation; and $3,000 and $10,000 per unauthorized employee for a third violation. Employers who fail to properly complete, retain, or present for inspection a Form I--9 can be fined between $100 and $1,000 for each employee for whom a form was not completed, retained, or presented.
Some commonly asked questions, with answers, are presented below.
Question. First Church hires a custodian who will be paid a flat fee of $200 per month to perform the church's limited custodial duties. He is free to choose his own hours and perform the work as he wants with no supervision or direction by the church. Must a Form I--9 be completed under these circumstances?
Answer. No. The custodian under these facts is self--employed, and therefore no Form I--9 is required.
Question. Do United States citizens need to prove they are eligible to work?
Answer. Yes. While United States citizens are automatically eligible for employment, they too must provide the required documents and complete the Form I--9.
Question. Does a church have to complete an I--9 for everyone who applies for a job?
Answer. No. A Form I--9 need only be completed for people that you actually hire. A person is “hired” when he or she begins to work for you.
Question. If someone accepts a job with our church but will not start work for a month, can a Form I--9 be completed when the employee accepts the job?
Answer. Yes.
Question. What should an employer do if the person hired is unable to provide the required documents within three days?
Answer. If an employee is unable to provide the required documents within three days, he or she must at least produce a receipt showing that he or she has applied for the documents. The employee must then produce the documents within 21 days.
Question. When do I fill out the Form I--9 if I hire someone for less than three days?
Answer. Some time before the end of the employee's first working day.
Question. What if I rehire someone who previously filled out a Form I--9?
Answer. You do not need to complete a new Form I--9 if you rehire the person within three days of the initial hire, and the person is still authorized to work.
For related information on this topic see the following articles:The Church as Employer—Unemployment Taxes