Employment Eligibility Form I-9: Not as Simple as You Might Think

By Paul Soreff
Although on its face the Form I-9 appears relatively simple, its correct completion has proven to be an arduous task for many employers. In recent years Congress has tripled the funding in this area and we have seen a dramatic increase in investigations and fines. Simple mistakes can lead to substantial civil monetary penalties and possible criminal actions.

With the passage of the Immigration Reform and Control Act of 1986 Pub. L. No. 99-603, 100 Stat. 3359 (IRCA), Congress charged employers with the responsibility of verifying that all their employees (both foreign workers and U.S. citizens) are eligible to work.1 IRCA also prohibits discrimination on the basis of citizenship status and document abuse, in addition to expanding protection against national origin discrimination.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)2 amended some of the provisions of IRCA (among other things, expanding the good faith defenses, making discrimination more difficult to prove, and reducing the number of acceptable documents).3

Eligibility Verification
Section 1: The employee must indicate his/her name and U.S. citizenship or foreign worker status with any expiration dates and must sign the I-9 form under penalty of perjury. Independent contractors are not “employees.”

Section 2: Within three business days of hire, the employer must physically examine documentation that establishes the identity and employment authorization of the employee and ensure they appear to be genuine and relate to the individual presenting them.4 The lists of acceptable documents are printed on the back of the I-9. An employer may not specify which documents an individual presents. To do so would violate the anti-discrimination provisions of the act.5 The details of the documents must be recorded in the appropriate space in Section 2. Then employer must sign and date the I-9 under penalty of perjury.

Section 3: If the employee checks Box 3 in Section 1 of the I-9, documentation must be presented confirming continued employment authorization on or before the worker’s expiration date. Then the employer must then record the new expiration date.

Record Keeping Requirements: Employers must retain I-9 forms for three years after the hire date or one year after the termination date, whichever is later. Employers must receive three days notice prior to an inspection of the I-9 forms.6 Employers are not allowed to destroy original I-9s.

Penalties
Civil Penalties: For a violation of INA ¤274A(a)(1)(A) or (a)(2), fines of:

• $250 to $2,000 for each unauthorized individual;
• $2,000 to $5,000 for each employee if the employer has previously been in violation; or
• $3,000 to $10,000 for each individual if the employer was subject to more than one cease and desist order.7

For violation of INA ¤274A(a)(1)(B) (paperwork), $100 to $1,000 fine for each individual.8

Criminal Penalties: Under INA ¤274A(f) (pattern and practice) fines of up to $3,000 for each unauthorized worker, imprisonment up to six months, or both.

Good Faith and Substantial Compliance
Good Faith, ¤ 274A(a)(3): This provides an affirmative defense for the allegation of knowingly hiring unauthorized aliens, if the employer made a good faith effort to comply with the verification process. However, an employer that is negligent with its I-9 compliance is likely to be fined for both verification violations, as well as knowing hire violations. Unless the verification mistake is technical or minor, this defense is of little help.

Good Faith, ¤ 274A(e)(5): This is one of five mitigating factors to be used for violations of verification procedures.9

Good Faith, ¤ 274A(b)(6) as amended by IIRIRA:10 This provides an affirmative defense for employers that violate the verification process by “technical and procedural failures” if they are corrected within ten days of explanation. Some examples of technical errors are: (1) the address or date are missing; (2) the employee did not make an attestation; and (3) the expiration date is missing from List B.11 The good faith compliance provision does not apply to a person or entity that has been or is engaging in a pattern or practice or continuing to hire unauthorized aliens.

Since sloppy I-9 procedures often lead to the hiring of unauthorized workers, employers should be forewarned that reliance upon the ten-day rule may be a trap for the unwary. Note, substantial compliance is a separate and distinct defense to paperwork violations.12

Social Security Cards Issues
In 1998, INS General Counsel addressed employers’ responsibilities under ¤ 274A after receiving information from the Social Security Administration (SSA) indicating that names or SSNs of employees do not agree with SSA records.13 The General Counsel agreed that a discrepancy between the name and the SSN would not, by itself, put an employer on notice that the employee is unauthorized to work, or require re-certification of documents or further inquiry as to the employee’s work authorization.14 However, there may be situations in which the INS could consider a failure to follow-up on knowledge of a discrepancy with the SSN and name as the knowing employment of an unauthorized worker.

Preventing an INS Investigation of Your Client’s Worksite
Written Compliance Policy: Prepare a comprehensive, written I-9 compliance policy.

Centralization of Authority: There are a few employment positions in the United States in which mistakes can lead to substantial civil monetary penalties. Employers are advised to limit the number of employees who are authorized to complete the I-9. Designate a supervisor who has responsibility for the initial I-9, maintaining, re-certification, and purging of I-9s.

I-9 File System: Establish an I-9 file system, which:

• Ensures that I-9s are completed within three days of hire.
• Alerts for re-certification.
• Alerts when to purge I-9s.

Centralization of Storage: I-9s should be stored alphabetically, preferably separated from payroll and personnel records and separated between current and former employees. For large corporations, storage can be divided further by geographic location, year of hire (for current employees) and year of termination (for former employees).

Internal Audits: Employers should conduct annual internal audits of their I-9 compliance efforts on at least a sample basis. If mistakes are found, a more extensive review should be initiated and a strategy for future compliance developed.

Discriminatory Intent-Pre-Employment Inquiries: Establish a legal prescreening/hiring policy. In 1998 the OSC Special Counsel, John D. Trasvi–a, advised that the employers’ use of the following questions, would not expose them to liability under INA ¤ 274B.

1. Are you legally authorized to work in the U.S.? ______ YES ______ NO
2. Will you now or in the future require sponsorship for employment visa status? ______ YES ______ NO

He does NOT recommend use of the questions below, as it may become the basis of a discrimination claim:15

1. Are you one of the following? U.S. citizen; Lawful Permanent Resident; Temporary Resident; Asylee; Refugee ______ YES ______ NO
2. If no, are you currently authorized to work in the U.S.? ______ YES ______ NO

Conclusion
Look for increased activity in this area as more inspectors are hired, more aliens are questioned, and more I-9s are reviewed. Prudent employers and their attorneys should conduct a thorough review of their internal compliance procedures, be sure everyone is treated equally in the verification process, make changes where appropriate (to correct past errors), and then be prepared for the increased likelihood that Uncle Sam will be knocking at your client’s door.

1. See Generally, INA ¤274B; 274C; 8 USC ¤ 1324b(a); 8CFR Part [1] 274a; and 28 CFR Part 4
2. Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009
3. On February 2, 1998, the INS published its proposed rule to implement these changes, 63 Fed. Reg. 5287 (Feb. 2, 1998). The 60-day public comment period has long passed, but there still are no final regulations. With the recent transfer of this area to the Bureau of Immigration and Customs Enforcement (BICE) within DHS, it is unclear when the final regulations will be issued.
4. Most immigration counsel recommend copying the documents relied on and attaching them to the form.
5. INA ¤274B(a)(6), 8 USC ¤ 1324b(a)(6).
6. 8 CFR ¤ 274a.2(b)(2)(ii).
7. INA ¤274A(e)(4)(A).
8. INA ¤274A(e)(5).
9. INA ¤274A(e)(5).
10. 8 USC ¤1324a(b)(6).
11. See also U.S. v. WSC Plumbing, Inc. 9 OCAHO no. 1062 (Nov.29, 2000)
12. See U.S. v. Carter, 6 OCAHO 865 (May 23, 1996) and U.S. v. Corporate Loss Prevention Associates, 6 OCAHO 908 (Feb. 5, 1997).
13. Letter to Bruce Larson from David Martin, General Counsel (INS), reprinted in 75 Interpreter Releases 203 (Feb. 9, 1998).
14. Since IIRAIRA, the employer can be held liable only if the action was taken with the intent of discriminating against the individual. ¤274B(a)(6), 8 USC ¤ 1324b(a)(6).