Frequently Asked Questions: Undocumented Workers

​Which employers are covered by the West Virginia requirement to verify the legal employment eligibility of all workers before hire?

Every employer having employees working within the boundaries of the state of West Virginia is required to verify the legal employment status or authorization to work for each of their individual employees at the time of hire.

What are the requirements for verifying an employee’s legal employment eligibility or authorization to work?

Proper documentation is required to verify an employee’s legal eligibility, or authorization, to work.  Employers meet this responsibility by requiring any one of the following types of identification at the time of hire:  1). A valid social security card.  2). A valid immigration or non-immigration visa including photo identification.  3). A valid birth certificate.  4). A valid passport.  5). A valid photo ID card issued by a government agency.  6). A valid work permit or supervision permit issued by the WV Division of Labor, or  7). A valid permit issued by the Department of Justice.

As a prospective employee, what if I do not want to provide my employer with the type of documentation that’s required?

Any individual that does not provide the required identification when applying for employment will be considered ineligible for hire.

Once an employer has obtained one of the pieces of required identification for each employee, does that mean the company is in full compliance?

Obtaining the required documentation is only the first part of compliance.  Maintaining that information and making it available to the Division of Labor upon inspection is the second requirement of compliance.

As an owner of a construction company, I was told that I am required to maintain a copy of the documentation that was provided to me by each of my employees at each of my job sites.  As the type of documentation required contains employee personal information, I don’t feel comfortable with keeping that information at the job site.  Is this a requirement?

Records obtained by an employer for the purpose of verifying an individual’s eligibility to work are to be maintained at the employer’s place of business, even when that place of business is on a construction site.  However, state law allows employers the option of maintaining such records at their central recordkeeping location.  Whenever the company chooses this option and does not maintain the required records at the place of employment or work, the Division will serve a Notice to Produce Records or Documents (NTPR) allowing the company an additional seventy-two hours to produce the required documentation.  If the requested documentation is provided to the Division within the required seventy-two hour period, the employer is considered compliant.

If each employee working at the job site has the required documentation on his or her person and makes that information available to a Division of Labor officer, does the submission of that information verify employer compliance?

As obtaining the proper documentation from each employee and providing that information to the Division of Labor is the sole responsibility of the employer, any personal identification presented to a Division of Labor officer by employees at the time of inspection cannot be considered to determine employer compliance.

If my company is served a Notice to Produce Records or Documents, does that constitute a violation?

The issuance of a Notice to Produce Records or Documents (NTPR) by itself does not constitute a violation. As a matter of fact, the purpose for issuing an NTPR is to allow employers an additional seventy-two hours to submit the documentation needed to achieve compliance.  The only time an employer is considered in violation, is when the employer does not submit the documentation requested by the NTPR.

I don’t have any employees working for me that are not United States Citizens.  Do I still have to comply?

Employers are responsible for verifying the legal employment status for all prospective employees.  As the United States Government regularly issues work permits to non-citizens for the purpose of legal employment in this country, a person’s citizenship, or non-citizenship, status alone does not constitute an individual’s legal authorization to work.
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