Updated: Sep 7
This is a good question. You should not (and do not want to) administer I-9s on non-employees. That said, you cannot turn a blind eye if you have any concerns regarding the work eligibility of an independent contractor.
There have been a number of cases in which employers have been found liable for the non-compliance of their contractors and subcontractors, so the fact that the contractor is not an employee doesn’t necessarily protect you, as an employer, from liability for non-compliance with immigration laws. At the same time, you don’t want to subject your company to claims of national origin discrimination by treating a contractor differently than other contractors simply because he or she is foreign-born or speaks with an accent.
In general, we would not recommended that you ask to see their work authorization unless you have a company policy or practice in place in which you verify work authorization for all independent contractors. However, in addition to forming part of ICE Best Practices, it is generally a good idea to require that ALL your contractors certify that they are compliant with applicable laws. To what extent you pursue contractor compliance beyond that that really depends on your company and your industry.
For starters, whether an individual is being hired through a staffing company, or being contracting directly with your company can make a difference. If through a staffing company, you should ensure that your contract with the staffing company clearly spells out the requirement for the staffing company to comply with employment verification requirements.
If you are contracting with the individual directly, you should first make sure that he or she is acting in the capacity of an independent contractor and not as an employee. Given the depletion of unemployment funds and drains on Social Security, both federal and state government are really cracking down on misclassification of employees as independent contractors; IRS and DOL are hiring hundreds of additional auditors to track misclassification, and states are following suit. You don’t want your company to be liable for wages, overtime, and back taxes because of a misclassification.
If you’re sure the individual is properly classified as an independent contractor, the next question to ask is what is your company’s standard practice for entering into agreements with independent contractors? Do you require all contractors to confirm that they are eligible to work in the United States and comply with all immigration and other applicable laws? Do you examine documents for all contractors? If not, unless you have some reason to believe that an individual is not compliant, we would not recommend that you ask to review their work authorization. The fact that someone was born outside of the United States is not, in and of itself, sufficient basis to presume that he or she is not authorized to work in the United States.
We cover liability for contractor non-compliance in several live seminars and webinar training. Training on a variety of other immigration compliance subjects are also available online.
Register for your training today at usimmigrationcompliance.com
Business Immigration Attorney
MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to your situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.