Or. Admin. R. 839-015-0530

Current through Register Vol. 63, No. 4, April 1, 2024

Section 839-015-0530 - Knowing Employment of a Noncitizen Not Legally Present or Legally Employable in the United States

(1) A contractor knowingly employs a noncitizen who is not legally present or legally employable in the United States, in violation of ORS 658.440(3)(d), if the contractor:

(a) Actually knows that the noncitizen is not legally present and/or not legally employable in the United States; or

(b) Would know that fact if the contractor made efforts to ascertain the noncitizen's status in the United States which were reasonably diligent under the circumstances as the contractor knows them.

(2) Efforts to ascertain a noncitizen's status in the United States which are reasonably diligent under the circumstances as a contractor knows them include but are not limited to the following actions by the contractor:

(a) Making clear to all applicants, hirees and workers that they cannot work for the contractor unless they are legally present and legally employable in the United States;

(b) Taking one of the following actions:

(A) Requiring that every hiree produce documentary proof that he/she is legally present and legally employable in the United States before he/she begins work; or

(B) Asking all applicants for employment if they are U.S. citizens and requiring that any applicant who has indicated that she/he is not a U.S. citizen, and whom the contractor intends to hire, produce such proof.

(c) Familiarizing itself with pertinent U.S. Immigration and Naturalization Service (INS) regulations and procedures, the types of documentary proof listed in section (4) of this rule, and the other types of documentary identification of noncitizens issued by INS; and

(d) Making additional efforts to better discourage and detect the presence of noncitizens not legally present and/or not legally employable in the United States in the contractor's workforce, if the contractor knows or should know that the contractor's past efforts to accomplish that objective have been unsuccessful.

(3) A contractor should be suspicious that an applicant, hiree or worker is not legally present and/or not legally employable in the United States if, for example:

(a) The documentation of that individual's status in the United States:

(A) Does not evidence the individual's legal presence and legal employability in the United States;

(B) Appears on its face to be counterfeit;

(C) Includes information which does not match the individual offering the documentation; or

(D) In the case of documentation of noncitizen status, does not match the INS specimens of the documentary identification which INS issues for noncitizens;

(b) The applicant, hiree or worker has given the contractor contradictory information relating to his/her status in the United States or information on that subject which conflicts with pertinent INS regulations and procedures;

(c) The contractor knows or should know that the applicant, hiree or worker has been apprehended by INS as a noncitizen not legally present or legally employable in the United States and/or, because of that status, returned to the noncitizen's country of citizenship; or

(d) The contractor is aware of information indicating that the applicant, hiree or worker is a noncitizen not legally present or legally employable in the United States.

(4) Documentary proof that an individual is legally present and legally employable in the United States includes:

(a) Acceptable evidence of United States' citizenship:

(A) Birth certificate showing place of birth within the United States, its territories or possessions;

(B) Certificate of citizenship;

(C) Certificate of naturalization;

(D) U.S. identification card (INS Form I-179 or I-197);

(E) Passport issued by the United States identifying the individual as a citizen of the United States;

(F) Consular report of birth (State Department Form FS-40);

(G) Baptismal certificate under seal of a church or other religious body which practices infant baptism showing the individual's date and place of birth within the United States, its territories or possessions;

(H) A document under seal of a religious body which does not practice infant baptism showing the individual's date and place of birth within the United States, its territories or possessions;

(I) Tribal enrollment card in an American Indian tribe recognized by the Bureau of Indian Affairs;

(J) Other written advice from INS attesting that the individual is a citizen of the United States;

(K) A copy of a declaration, signed by the person under penalty of prosecution for violation of Title 18 U.S.C. 1001, and witnessed by the signature of the appropriate official of the U.S. Employment Service, affixed in the presence of the applicant, filed with the U.S. Employment Service or any of its affiliated offices, attesting that such individual is a citizen of the United States, was born at the place stated and on the date set forth thereon, and reciting the following additional information:

(i) Social security number of such individual (voluntary); and

(ii) Names and addresses of three adult citizens of the United States who can be contacted to verify the individual's citizenship.

(L) A certificate issued by the U.S. Department of Labor, Bureau of Employment Security, or the Commonwealth of Puerto Rico which attests that, based upon examination of any of the documents prescribed by paragraphs (a)(A) through (L) of this section, the individual named and identified by the picture on that certificate was born within the United States (including its territories and possessions) at the place and on the date specified thereon and which sets forth such individual's home address (street and number, city, state, and zip code) and social security number.

(b) INS Form I-151 or I-551, Alien Registration Receipt Card;

(c) INS Form I-94 (with or without a passport) bearing an employment authorization consisting of the words "Employment Authorized";

(d) INS Form I-94 (with or without a passport) bearing the designation of H-2, as endorsed on the front or back of the form, authorizing an individual to engage only in agricultural employment during the period of such individual's authorized stay in the United States;

(e) INS forms I-688 and I-688A;

(f) Any other written document from INS indicating that the individual is a noncitizen authorized by INS to accept such employment in the United States; or

(g) U.S. Armed Forces Discharge Papers.

Or. Admin. R. 839-015-0530

BL 6-1984, f. & ef. 4-27-84; BL 3-1990, f. & cert. ef. 3-1-90; BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01; BLI 9-2023, minor correction filed 07/18/2023, effective 7/18/2023

Publications: Publications referenced are available from the agency.

Statutory/Other Authority: ORS 164, 165, 651, 658.407(3) & 962

Statutes/Other Implemented: ORS 658.440(3)(d)