The Form I-9
Regardless of whether a company hires a foreign national or a U.S. worker, it must comply with employment verification rules by properly completing a Form I-9. The employee is required to complete Section 1 of the Form I-9 on or before the first day of hire. The employee must attest to the basis of his or her right to work as a U.S. citizen, lawful permanent resident, or foreign national with work authorization. The employer is required to inspect the original documents demonstrating the employee’s identity and work authorization within three days of hiring. The employer, usually a human resource employee, attests to the inspection of these documents in Section 2 of the Form I-9.
Although only one page, the Form I-9 can be deceptively difficult to lawfully complete. The employer must be careful to avoid common mistakes that violate discrimination laws. One common error employers commit in this area includes “document abuse.” An employer commits document abuse if it requests particular documents or too many documents to prove identity and/or work authorization. Rather, to avoid a finding of discrimination, the employer is required to let the employee decide on which documents to present.
Moreover, employers often find it very confusing to determine which of the various documents it can accept and how to list them on the form when consulting the U.S. Citizenship and Immigration Service (“USCIS”) guidance for I-9 compliance. When the employee is a foreign national, there are many possible types of documents that can be presented to prove identity and work authorization, and the employer must be very careful to place the information in the right columns on the form. Mistakes can prove costly. Indeed, effective March 27, 2008, the U.S. Department of Homeland Security (“DHS”) substantially increased civil fines against employers who violate federal immigration laws.
Civil fines can range from approximately $100 to $1,000 for failure to properly complete or maintain I-9 documentation, for each violation. If too many mistakes are made the government may find the employer has a practice and pattern of unlawful hiring. Worse, if some employees turn out to be illegal workers, the government may find that the employer has knowingly been hiring unauthorized workers. Fines involving these types of violations range from approximately $375 to $16,000. Serious or repeated immigration violations can even result in criminal sanctions and jail time.
Recent Developments in Compliance Laws
Employers should be aware of recent developments involving I-9 compliance. On August 15, 2007, the DHS attempted to implement new regulations involving “no match letters.” A no match letter is a letter sent by the Social Security Administration (“SSA”) notifying an employer of a mismatch of information in government databases concerning the employee’s name and social security number. The regulation calls on employers receiving no match letters to undergo rather complex and involved steps under a safe-harbor procedure to avoid liability in the event the government determines any of its employees are working without permission. One of these steps involves completing new Forms I-9.
Based on the regulation, the SSA was ready to send out mismatch letters to millions of employers when the U.S. District Court for the Northern District of California enjoined the DHS from implementing its new regulation, based on some narrow grounds.
One March 21, 2008, the DHS released a Supplemental Proposed Rulemaking to the August 15, 2007 regulation. The Court will soon rule on whether the new revision makes the rule legal. If the Court rules in favor of the government, millions of employers will receive mismatch letters. In addition, the DHS plans to send employers “notices of suspect documents,” which are letters informing employers that there is some doubt concerning the work eligibility of their employees. Consequently, employers may face new questions on how to deal with inquiries about the immigration status of some of their workers. These employers should bear in mind, however, that many of the letters will be sent based on innocent mistakes, such as Social Security records that do not have updated information reflecting a name change caused by marriage.
Maintaining Forms I-9
Once a Form I-9 has been correctly completed, it must be properly maintained. Employers are required to retain the Form I-9 for 3 years after the date the person begins work or 1 year after the person’s employment is terminated, whichever is later. Employers are also required to reverify the Form I-9 by examining new documents before a foreign employee’s original work authorization expires and completing Section 3 of the Form I-9.
The best way for companies to avoid employment verification problems is the development of a good corporate compliance policy. A good corporate compliance policy will designate appropriate representatives to monitor and supervise employment verification procedures, including the completion of Forms I-9, provide the rules for training personnel to handle these procedures, state what software or other tools should be used to properly track Forms I-9 for reverification or elimination, and specify how and when audits should be performed to verify that procedures are properly followed.
Whether you would like help with setting up a good I-9 employment verification program, I-9 training, or responding to a government investigation, the lawyers at The Nossa Law Office can assist you. We have experienced immigration lawyers with expertise in handling immigration and employment law matters, and we would be honored to help you with your immigration compliance issues. Furthermore, please take a look at our guide to Employer Verification Requrements.