For the verification of employment eligibility, employers must allow their workers to choose which documents to show from the lists of acceptable documents on the I-9 form. Requesting a specific document or more documents depending on the worker's citizenship status may violate the law that applies the Immigrant and Employee Rights (IER) Section of the Civil Rights Division of the Department of Justice. The Ministry of the Interior recently updated its guide for employers in relation to right to work controls, which is available here. When verification of a document is required, employers must provide their signature and print their name and the date and time to confirm that they have seen the original document.
Discrimination charges under the INA are processed by the IER. Under these circumstances, employers can only establish a legal excuse if they are issued a positive verification notice (PVN) confirming that the designated person is authorized to perform the type of work in question. This means that if the Ministry of the Interior determines that an employer has hired a person who has no right to perform the work in question, but the employer has correctly carried out the verification of the right to work, they will not receive any civil penalty for the illegal worker in question. The most recent guidelines make it clear that an employer can face a civil penalty if they do not record the date the verification was carried out in this way and, in addition, that simply writing a date on the copy document does not confirm, on its own, that this is the actual date the verification was performed. Before doing so, it is important for employers to ask their workers for any information or documentation that indicates that they have a pending application for permission to remain in the UK with the Home Office, that it was submitted before their previous permit expired, or that they have an appeal or administrative review pending and, therefore, cannot demonstrate their right to work. The responsibility for verifying documents and verifying right to work lies with employers.
In addition, manual checks on right to work can be delegated to members of an employer's staff (including workers assigned by them and working under their control), but employers will continue to be responsible for any civil penalty if the person is found to be working illegally and prescribed control has not been carried out correctly. This check must be done just before a person's prior leave ends, so employers must be sure to write it down in a journal. The most recent guidelines make it clear that employers cannot delegate this responsibility to a third party and expressly state that, except when an employer uses an identity service provider (IDSP) to control British and Irish citizens holding a valid passport (including Irish passport cards); see below, they will not establish a legal excuse if control is carried out by a third party, such as a recruitment agency or their professional advisor. The guide also says that it is up to employers to determine if information provided is sufficient. Therefore, in addition to verifying right to work to ensure students can work, employers must also obtain, copy and keep details of student's academic period and vacation times that cover duration of period of study in United Kingdom for which they are going to work.
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