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I-9 Compliance Crackdowns


Reprinted with  permission of the Society for Human Resource Management (www.shrm.org), Alexandria, VA, publisher of HR Magazine. © SHRM

I-9 Compliance Crackdowns

Vol. 56 No. 2 

2/1/2011  By Hector Chichoni 

Attention to detail is critical in filling out and checking eligibility-to-work documents.

Since enactment of the Immigration Reform and Control Act of 1986 more than two decades ago, employers have failed to fully appreciate the importance of the law in terms of Form I-9 compliance. With the federal government cracking down on noncompliant I-9s, employers need to take immediate steps to get their houses in order.

Officials with the U.S. Department of Homeland Security, specifically U.S. Immigration and Customs Enforcement, know that most U.S. employers are not fully compliant, so employers are at the center of the crackdowns. The agency’s strategic plan through 2014 states it will continue targeting employers by pursuing “effective worksite enforcement.” This includes civil and criminal enforcement.  

By establishing and maintaining effective Form I-9 compliance policies, employers can prevent potential liability and mitigate many potential violations. Employers should implement effective I-9 procedures that result in accurate, consistent and uniform preparation, maintenance and, ultimately, disposal of the forms.  

In addition, employers must, in the context of Form I-9 compliance, assess their legal exposure, educate managers on legal risks, and adopt HR practices that identify and prevent liability.  

Different Versions of I-9  

U.S. Citizenship and Immigration Services (USCIS) makes Form I-9 available in English and Spanish.  

The English version must be retained, while the Spanish version can be used for translation purposes only. The exception: In Puerto Rico, employers may retain and use either version.  

Form I-9 has undergone several revisions during the last two decades, with the first occurring in 1991. Subsequent 2007 and 2009 revisions primarily updated the number of acceptable forms for establishing identity and work authorization, and eliminated unsecure or out-of-date documents.  

During 2009, Form I-9 was revised twice. Important changes included a mandate that employers accept only unexpired documents, updates to List A and List C, and the addition of “non-citizen national of the United States” to the employee’s attestation box in Section 1.  

It is critical that employers use the proper Form I-9, available at www.uscis.gov/i-9, and complete it correctly.  

All new employees must complete Form I-9 if they were hired on or after Nov. 7, 1986, regardless of citizenship.  

Filling Out I-9s

On or before the employment start date, employers must provide a new hire with Form I-9, its instructions and the lists of acceptable documents to establish identity and work authorization. Ensure that the new employee legibly and properly completes Section 1 of Form I-9 and signs the form or acknowledges the signature no later than the first day of hire.  

An employer cannot request a Social Security number when the employee is completing Section 1 unless the employer is registered for and using E-Verify. The employee must provide a physical address, not a post office box. The new employee has three business days from the employment start date to present the necessary documents to establish his or her identity and employment authorization. USCIS has issued a clarification on how to calculate the three business days for I-9 purposes. According to instructions for E-Verify, the date of hire is counted as day zero, not day one. But the safest approach is to count the date of hire as day one.  

Moreover, employers should require employees who indicate on Form I-9 that they are “aliens authorized to work” to identify specifically their status and classification on the form.

The employee chooses which documents to provide. Although this specific requirement has been in place since 1986, it is often neglected.  

Employers are responsible for completing Sections 2 and 3 of Form I-9. The new employee must provide either one original document from List A or one original document from List B (regarding identity) plus one original document from List C (regarding work authorization). Further, if an employee provides a document from List A that meets the requirements, the employer should neither request additional documentation nor complete any portion of the List B or List C parts of Section 2 of the form.  

One important distinction: Employers registered for E-Verify must, when an employee presents a document from List B, require a document with a photograph.  

Employers are responsible for reviewing acceptable unexpired original documents and for comparing the information on the documents to that in Section 1. When reviewing originals, confirm that they reasonably appear to be genuine and relate to the new employee. Examine them carefully for obvious errors.  

Employers can compare documents to pictures found in USCIS’ Handbook for Employers (M-274) or Guide to Selected U.S. Travel and Identity Documents (M-396) for obvious errors relating to font, seal, photograph alignment and document presentation. Employers registered for E-Verify must use the information contained on Form I-9 to conduct a query on the newly hired employee. Therefore, it’s important to ensure that the form is correct.  

When an employee’s work authorization expires, the employer must reverify his or her employment eligibility. If Section 3 has been already used, use a new Form I-9 by writing the name of the employee in Section 1 and completing Section 3 of the new form. The new form must be attached to the original form. The employee must present a document that shows either an extension of employment authorization or new work authorization. If an employee is unable to show current work authorization by providing a document from List A or List C, the employer cannot continue to employ the individual.  

Employers can also use Section 3 when rehiring an ex-employee within three years of his or her departure. However, doing so makes it more difficult to keep track of the expiration of documents. An employer rehiring an ex-employee within three years should use a new Form I-9 to ensure that the latest list of acceptable documents is being used.  

One important I-9 rule is the “receipt rule.” An employer may accept a receipt in lieu of a document from List A, B or C if the receipt is for a replacement of a lost, stolen or damaged document. In this case, the receipt is valid only for 90 days from the date of hire, or, for reverification, until the date that the employment authorization expires. Receipts cannot be accepted if employment is to last less than three days. When the employee provides an acceptable receipt, record the document in Section 2 of Form I-9 and write down the word “receipt” and its document number in the “Document #” space. When the employee returns and presents the actual document, cross out the word “receipt” and the number, write the actual document’s number, and initial and date the change.  

The Immigration Reform and Control Act allows, but does not require, employers to make a copy of Form I-9 documents. If the employer copies documents for one new employee, it must do so for all new employees. Copies of documents should be attached to Form I-9 for audit purposes. Federal officers have informally commented that they prefer to see a copy of the documents when going through audits. Having the copies readily available can go a long way to show that an employer has complied with the act’s verification process in good faith.  

I-9 Audits  

Employers that audit their I-9 forms can use those audits to review, revise and correct their written policies. It is therefore important that employers assess their legal exposure and conduct internal audits of the forms. If an audit uncovers incorrectly completed forms, take steps to address the deficiencies, but don’t backdate any corrections or amendments to forms. Instead, conspicuously initial and date changes when remedial steps are taken.

If deficiencies are found in Section 1, the employee must sign and date any corrections. The employer must suspend or terminate any employee discovered to be working without authorization. It is wise to consult with an attorney before suspending or terminating an employee, as wrongful termination could lead to charges of discrimination and other claims.  

Substantive Violations

Federal agents or auditors often inspect I-9s. The purpose is to identify violations that might lead to criminal prosecution as well as substantive or technical violations that might result in issuance of administrative fines or warning notices.

Since the 1996 amendment to the Immigration Reform and Control Act, the federal government distinguishes between technical errors and substantive violations.  

Examples of technical or procedural violations include failure to:  

Ensure that an individual provides her maiden name, when applicable, or his or her address or birth date in Section 1 of the I-9.

Ensure that the individual dates Section 1 at the time employment begins.

Provide the document title, identification numbers and expiration dates of proper List A documents or proper List B and List C documents in Section 2 or 3, but only if legible copies of the documents are retained with the forms and presented at the I-9 inspections.

Provide the title, business name and address in Section 2.

Provide the date of rehire in Section 3.

The federal government must provide employers at least 10 business days to correct technical violations after notification. If an employer fails to correct violations on time, it will be subject to fines.  

Examples of substantive violations include failure to:

Prepare or present Form I-9.

Ensure that the individual provides his or her printed name in Section 1.

Ensure that the individual checks a box in Section 1 attesting to whether he is a citizen or national of the United States, a lawful permanent resident, or an alien authorized to work until a specified date.

Ensure that an alien authorized to work provides his or her alien number in Section 1, if the number is not provided in Section 2 or 3, or on a legible copy of the document that is retained with the I-9 form.

Ensure that the individual signs the attestation in Section 1.

Review and verify a proper List A document or proper List B and List C documents in Section 2 or 3.

Sign the attestation in Section 2.

Date Section 2 within three business days of the date the individual begins employment or, if the individual is employed for three business days or less, at the time employment begins.

Sign Section 3.

Date Section 3 not later than the date that the work authorization of the individual hired expires.

Penalties

Employers may be subject to fines for substantive and uncorrected technical violations. U.S. Immigration and Customs Enforcement has the power to determine if an employer knowingly hired or continued to employ unauthorized workers. If so, the employer may be fined and, in certain situations, may be prosecuted criminally. Debarment is also possible.  

Procedural consistency is critical to protect the company from discrimination claims that may arise as a result of an untrained employee going beyond the procedural and substantive I-9 rules.  

Accuracy is of extreme importance for purposes of Form I-9 compliance. Employers often complete forms but fail to pay attention to detail. Proper completion requires knowledge of complex and often confusing rules and diligence to maintain accuracy and uniformity.  

The author is an attorney with Duane Morris in Miami.”  

 
 
 
 

Filing Complaint with DOL Doesn't Preclude FMLA Lawsuit, Says Eleventh Circuit


The Family and Medical Leave Act authorizes employees to file a complaint against their employer with the Department of Labor, which can then file an enforcement action.  The FMLA also permits employees to file suit directly against their employer in court. But what happens if an employee does both?  That was the question posed in a recent decision by the Eleventh Circuit Court of Appeals, Spakes v. Broward County Sheriff's Office (11th Cir. January 31, 2011).

The employer argued that the FMLA's implementing regulations require an employee to choose either a DOL complaint or a private lawsuit, and that an earlier-filed complaint with the DOL bars a subsequent private lawsuit.  Specifically, the employer relied on 29 CFR 825.400(a), which provides:

(a) The employee has the choice of: (1) Filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or (2) Filing a private lawsuit pursuant to section 107 of FMLA.

This language seems pretty clear: the phrase "the employee has the choice of..." seems to require, well, that the employee choose one or the other. On its face, then, the employer's argument seems to have merit.

The problem with the employer's argument, according to the court, was that the regulations are inconsistent with the statute. The FMLA itself provides that an employee's right to bring an action is terminated only upon the filing of a complaint by DOL. That did not happen here, so the court held that the employee had the right to bring a private lawsuit.  "[W]here the statute provides a right to a cause of action and lists the limitations, regulations cannot contravene the statute by terminating the right where the statute did not so authorize," wrote the court.  In other words, as any first year law student can tell you, the statute trumps the regulations. And in this case, that means the employer loses.  

 
 
 
 
 

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.