Employment Eligibility (I-9)
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Employment Eligibility of Foreign Workers

Since enactment of the 1986 Immigration Reform and Control Act ("IRCA") the hiring or continued employment of aliens whom employers know are not authorized to work legally in the United States is prohibited by federal law. IRCA requires employers to verify the identity and work authorization or eligibility of all individuals, whether U.S.- or foreign-born hired after November 6, 1986. This is intended to eliminate discrimination by alienage in employment. U.S. employers are not allowed to hire only U.S. citizens or permanent residents to avoid trouble with other kind of workers, on the one hand, or limit available jobs to foreign workers who may accept a lower wage on the other.

Pre-employment screening by employers for unauthorized employment status is not allowed, though USCIS now offers prospective employees a chance to find out their employment eligibility through E-Verify before they actually accept a job with a U.S. employer and risk embarassment by a finding that they do not in fact qualify.

Form I-9

New hires must certify in writing on the form I-9 the basis for their employment status -- citizenship, permanent residency , or employment authorization-- no later than the first day of employment. Employees should understand that falsely claiming U.S. citizenship on such a form is a grave mistake that can come back to haunt them years in the future, if for example they apply for naturalization and the false claim is discovered. Not only is the applicant denied naturalization, but deportation is usually also ordered, since a false claim to U.S. citizenship is considered a very serious and disqualifying offense. Therefore employees should be honest on the form and not assume that a false claim to citizenship or residency is a small matter that will not have potentially disasterous consequences later.

March 2013 changes

The form I-9 has been updated several times in recent years, as has the list of acceptable documents that can be used to establish employment eligibility.

On March 8, 2013 USCIS released another I-9 version and M-274, Handbook for Employers, Guidance for Completing Form I-9. The latter is a useful guide

The I-9 now has two pages instead of one. Page one must be completed by the new hire and the Preparer or Translator who assisted in the completion of the form; page two must be completed by the Employer.

The new form must be used after May 7, 2013.

The I-9 form is available in Spanish for use only in Puerto Rico.

Employee Section One now provides four choices to indicate a prospective employee's status: 1) U.S. citizen; 2) Non-citizen national; 3) Permanent resident and, 4) Alien authorized to work. Employees who are not permanent residents but have temporary work authorization should check the fourth box. Only certain refugees and asylees should check “N/A” for the expiration date; as they may receive an unrestricted social security card and government ID. Other categories of prospective employees to use fourth box include: certain students given work authorization; nationals of certain countries with Temporary Protected Status (TPS); employer-sponsored foreign nationals such as H-1B, L-1, O, TN, J-1 temporary workers; aliens immigrating through family sponsored or other categories who are given EADs with expiration dates. Employer reverifications of temporary work authorization documents prior to expiration should be recorded on the I-9, Section Three.

Employer Sections Two and Three, With minor formating have basically not changed.

Basic provisions

Employers must review documents submitted by the new hires as proof of employment eligibility within three days following actual commencement of employment and complete Employment Eligibility Verification Forms I-9 to memorialize the results. Click here for a free download of the most recent form I-9 version and manual. Employers must produced the forms as lawfully required, as in the event of a governmental audit, but they are retained by the employer and not filed with the government. The forms must be retained for three years after the date of hire or one year after termination.

If you have questions about the form I-9, employment eligibility, the documents an employer must ask about, is allowed to ask about or those it can be fined by the Government just for asking about, or the consequences of obtaining employment on the basis of false documents for both the U.S. employer and the foreign worker alike, please contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

The I-9 employment eligibility program has been criticized as unfortunate because it demands a "don't ask, don't tell" of employers with twin risks arising from either overly-aggressive attempts by employers to uncover unauthorized employment or lax attitudes towards it.

If you have questions about what "don't ask, don't tell" can require or penalize, or what overly-aggressive or lax attitudes may encompass, please contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.

Employer duty of verification and sanctions for failure to verify properly

I. The U.S. Department of Homeland Security ("DHS") is charged with enforcing laws against unauthorized employment and the Immigration and Customs Enforcement Agency ("ICE") increasingly conducts audits of suspected non-compliant businesses. Employers can also be raided. Hearings are conducted before an Administrative Law Judge or federal court depending on the seriousness of the offense charged.

Penalties can be both civil and criminal. Pending announced increases by approximately 25% announced by the U.S. Attorney General, they can include:

  • Paperwork violations. Civil penalty of $110 to $1,100 per each deficient Form I-9.
  • Knowing Hire or Continued Employ of Unauthorized Employees. Civil penalties of
    • $275 to $2,200 (to increase up to $375 to $3,200) per employee for first violation
    • $2,200 to $5,500 per employee for second violation
    • $3,300 to $11,000 (scheduled to increase up to $16,000) per employee thereafter
    • Arizona, with other states, has enacted additional state law penalties for knowingly or intentionally hiring or continuing to employ unauthorized employees. Read more on employer sanctions.
  • Accepting fraudulent documents. Civil penalties may include:
    • $250 to $2,000 per document for first-time violation
    • $2,000 to $5,000 per document thereafter
  • Violation of Verification Procedures. Civil penalty of $100 to $1,000 per violation
  • Pattern of Knowing Hire or Continued Employ of Unauthorized Employees. Criminal penalties may include up to six months in jail and/or a fine of up to $3,000 per unauthorized employee.
  • Harboring
    • Up to five years imprisonment for knowingly hiring ten or more unauthorized employees in a twelve-month period with actual knowledge that they were brought into the United States illegally
    • Up to ten years imprisonment for helping an unauthorized employee enter the country illegally or harboring aliens for commercial advantage or financial gain
    • Potential civil penalities
Employment discrimination based on alienage

II. The Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") in the U.S. Department of Justice ("DOJ"), is a completely different agency that investigates charges of discrimination arising out of employment eligibility verification practices, including employment referral for a fee. Employers who are determined by a special hearing officer to have unlawfully discriminated may be required to pay back wages and civil penalties and to hire or rehire workers.

OSC responsibilities include:

  • Citizenship Status Discrimination. For business with four or more employees, unless otherwise required by law, regulation, or government contract, requiring U.S. citizenship or permanent resident status is prohibited; and refusing to hire asylees or refugees because employment authorization will end at a specific date in the future is unlawful.
  • National Origin Discrimination. For employers with four to fourteen employees, it is unlawful under immigration law to treat workers differently because of their place of birth, country of origin, ancestry, native language, or accent. (Cases of employers with fifteen or more employees are referred to the US Equal Employment Opportunity Commission and may also include a private right of action).
  • Unfair Documentary Practices. For business with four or more employees, specific combinations of documents can be supplied by new hires as proof of employment authorization, as set forth in government regulations and publications, and if a permissible combination is tendered of documents that appear to be reasonably valid on their face and relate to the employee, an employer cannot lawfully request additional documents, even to clarify matters. Thus, if for example an employee certifies that he or she has permanent residence status and tenders a driver's license and social security card but not the green card itself, it may be considered abusive for the employer to insist on seeing the green card and attempts to do so may result in governmental sanctions against the employer for document abuse. The new hires are given the choice over which acceptable Form I-9 documents to present, and not the employer.
  • Retaliatory Discrimination. It is unlawful for an employer to intimidate, threaten, coerce, or retaliate against an employee who files a discrimination charge, testifies, or assists an investigation or hearing, or asserts other rights under law.

If you have any questions about what these agencies do or can do, or have received an audit notice and are unsure about what to do next, please contact Messing Law Offices for a free brief telephonic evaluation or to schedule an initial consultation.

Employment verification by Computer: E-Verify

Employment verification is now double-checked by e-Verify, an Internet computer program of the Department of Homeland Security conducted in cooperation with the Social Security Administration. Employers or their designated agents enter information from the paper I-9 into a computer that is connected to the e-Verify website. The website accesses certain SSA and DHS databases and returns a confirmation if a record of the employee is found and he or she is employment authorized according to the accessed record. Procedures exist by contract to appeal adverse determinations.

Participation in e-Verify is still voluntary in most states, but Arizona passed a law mandating e-Verify checks as a matter of state employment law, which was upheld by the federal courts. Federal contractors are also required to do e-Verify checks of new and existing hires who may be called to work on a federal government contract.

If you have questions about employer's duties to check employment eligibility of workers and whether it applies to a particular jobsite or employer, please contact Messing Law Offices for a free brief telephonic evaluation or to schedule an initial consultation.

Messing Law Offices: Employment eligibility computerization: advantages

In 2006, DHS approved interim rules for the electronic generation, signature and storage of forms I-9, which is handy because it enables automation both of an electronic form I-9 and of the DHS-SSA e-Verify eligibility check, streamlining data entry, storage, purging and management. A downside is that it enables a quick, verifiiable audit by govermental inspectors and as a condition of participating the employer must agree to provide access to the electronic data and allow data-mining of it by Goverment agents upon request.

In August 2007, DHS adopted a Safe Harbor "No-Match" Rule. Under the Rule, an employer who is notified that the name and social security number of an employee fail to match governmental records must take steps to rectify the mismatch within a limited timeframe or be considered as knowingly hiring an unauthorized employee, which carries a civil penalty. A lawsuit was filed to contest the Safe Harbor "No-Match" Rule.

At Messing Law Offices, we provide high quality legal services and expertise to families, working men and women, and businesses. If you have a concern in the areas of family based immigration, business based immigration, employment based immigration, or naturalization and you are seeking the help of an experienced immigration lawyer, call Messing Law Offices, (520) 512-5432, for professional Arizona immigration attorney assistance.