Employers must walk a fine line when verifying employees' eligibility to work.
Take too lax an approach to reviewing identity documents for the purpose of completing I-9 forms and you could run afoul of the Immigration Reform and Control Act.
But as two employers learned, imposing overly rigorous document requirements on workers can violate the Immigration and Nationality Act.
Potter Concrete and the El Rancho grocery store chain, both located in Texas, separately agreed to settle Department of Justice charges that they illegally required noncitizens to submit specific Department of Homeland Security documents for I-9 purposes. Meanwhile, other workers got to choose what documentation to provide.
The companies were also accused of selectively running suspected noncitizens through the government's E-Verify online employment eligibility verification site.
Potter Concrete was required to pay $115,000 in civil penalties, while El Rancho had to fork over $40,500.
Advice: Avoid the I-9 documentation trap that snared these employers:
- Do review employees' documents to make sure they are on Form I-9's list of acceptable documents and to make sure they appear genuine.
- Don't ask the employee for any particular documents or more documents than required by the I-9. The employee chooses the documents, not you.
"We can audit any company, anywhere, of any size." – ICE Special Agent Brad Bench
ALERT: The feds have released a brand-new version of the I-9 form with new requirements. What's new on the revised I-9 form? And are you next in line for an audit?
Since 1986, employers have been required to complete the I-9 Form for each new hire to verify the person's identity and work eligibility, and then keep the form on file. In 2013, the U.S. Citizenship and Immigration Services (USCIS) issued a new version of the Employment Eligibility Verification Form, which employers were required to start using on May 7, 2013. And although USCIS published a notice March 28 of this year to tell the public of new proposed changes to the form, which expired March 31, employers should keep using it despite the problematic date printed at the top of its first page until further notice from USCIS.
Employers may provide a single document from List A or one each from List B and List C. For more details or assistance, call the USCIS Business Liaison hotline at (800) 357-2099.
List A—For Identity and Employment Eligibility:
- U.S. passport or card
- Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
- Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa
- Employment Authorization Document that contains a photograph (Form I-766)
- For a nonimmigrant alien authorized to work for a specific employer because of his or her status: (a) Foreign passport; and (b) Form I-94 or Form I-94A that has the following: the same name as the passport and an endorsement of the alien's nonimmigrant status as long as that period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.
Too often, company execs and HR managers assume their I-9 compliance practices are in order when, in fact, their records and policies are littered with mistakes, leaving the business and individuals open to fines, lawsuits and jail time. Are you sure that your I-9 practices can pass muster?
List B—Documents That Establish Identity:
- Driver's license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
- ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
- School ID card with a photograph
- Voter's registration card
- U.S. military card or draft record
- Military dependent's ID card
- U.S. Coast Guard Merchant Mariner Card
- Native American tribal document
- Driver's license issued by a Canadian government authority
For workers younger than 18:
- School record or report card
- Clinic, doctor or hospital record
- Day care or nursery school record.
List C—Documents That Establish Employment Authorization:
- A Social Security Account Number card, unless the card includes one of the following restrictions: (a) NOT VALID FOR EMPLOYMENT, (b) VALID FOR WORK ONLY WITH INS AUTHORIZATION, (c) VALID FOR WORK ONLY WITH DHS AUTHORIZATION
- Certification of birth abroad issued by the Department of State (Form FS-545)
- Certification of Report of Birth issued by the Department of State (Form DS-1350)
- Original or certified copy of birth certificate issued by a state, county, municipal authority or territory of the United States bearing an official seal
- Native American tribal document
- U.S. citizen ID card (Form I-197)
- Identification Card for Use of Resident Citizen in the United States (Form I-179)
- Employment authorization document issued by the Department of Homeland Security.
For more details, visit the U.S. Citizenship and Immigration Services website: www.uscis.gov.
Register now for our timely webinar, I-9 Compliance Workshop. You'll be learning from a true immigration law expert and Washington insider. Attorney Kevin Lashus is a former assistant chief counsel at the Department of Homeland Security, Immigration and Customs Enforcement (ICE).
Specifically, you will learn: - I-9 101. Discover the 10 essential steps to correctly fill out the revised version of the I-9.
- Documents. Which documents can you review for Lists A, B and C — and what has changed?
- Copying. Should you make copies of driver's licenses and other supporting documents?
Review. How far are you required to go to determine if a document is "genuine"?- Retention. Where must you store I-9s? Is a "binder system" the best? And how long must you retain them … 1 year, 3 years, more?
- Disposal. What's the proper way to discard of I-9s — must you shred them?
- Reverification. How can you handle reverification in the most legally safe and efficient way possible?
- Internal audits. What can be corrected and who should be auditing?
- Best practices. What else should you be doing?
- Electronic I-9 systems. What to consider when going paperless.
ICE is also focused on building criminal cases out of I-9 audits. Don't run the risk of your boss (or you!) being led off in handcuffs. Develop solid, audit-proof I-9 practices by joining us September 14 for this important interactive event.
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