When hiring new workers, most employers are aware of the need
to complete Form I-9, Employment Eligibility Verification. What
many employers may not be aware of is that a seemingly harmless
error may result in a civil, or worse, a criminal penalty for the
employer. The government’s enforcement of immigration laws
with regards to businesses has increased in light of the intensifying
debate over immigration. Businesses of all sizes may be subjected
to an I-9 audit by Immigration Customs and Enforcement (“ICE”).
In light of this, we suggest implementing an internal I-9 compliance
policy to better shield your business from potential liability. The
following is a list of helpful procedures that should be part of any
compliance policy:
- Have every new hire complete Section 1 of Form I-9 no later
than the first day of work for pay. However, make sure not to “prescreen” applicants by requesting proof of employment eligibility
prior to extending an offer of employment. Complete Section 2 of
Form I-9 within 3 business days. - Make sure you are using the most recent version of Form I-9,
which is updated regularly and is accessible through uscis.gov, the
official website of the U.S. Citizenship and Immigration Services
(“USCIS”, formerly “INS”). - Make sure you require ALL new hires to complete the Form I-9,
even US citizens. - Do not specify which document(s) from list A, B or C is
acceptable to you, as this may constitute unlawful discrimination –
let the employee choose. - Accept documents unless they have obvious signs of tampering
or forgery, but do not accept photocopies, you must inspect original
documents. - Make photocopies of the documents presented – doing so will
make it easier to show your good faith compliance and may limit
your liability in case of a government audit. Do not photocopy
documents for some workers but not others, as this again may
constitute discrimination. - Familiarize yourself with types of documents that require I-9 reverification upon their expiration.
- Although independent contractors are not required to complete
the Form I-9, know that simply designating a worker as an
“independent contractor” does not necessarily mean they will be
recognized as such for I-9 purposes – make sure they meet the
independent contractor “test”. - If hiring workers through a recruiter, realize that you may still
be liable for employing unauthorized workers if you have “actual
knowledge” that workers did not have employment authorization.
Although USCIS has implemented E-Verify, an on-line system for
employers to verify employment eligibility of workers, this system is
not immune from error. Additionally, participation in the program
does not provide a “safe harbor” from worksite enforcement and
only establishes a “rebuttable presumption” that a business has
not knowingly hired an unauthorized alien. A bonus to using
the program, however, is that it permits the extension of work
authorization for certain eligible employees who obtained a degree
from a U.S. college or university. The use of the program is not
currently mandatory in Massachusetts, though it may soon become
a requirement. Both conservative leaders in Congress and President
Obama’s recent blueprint for immigration reform propose phasing
in mandatory use of E-Verify. Additionally, the Supreme Court’s
recent decision to uphold an Arizona law mandating the use
of E-Verify opens the door for other states to follow Arizona’s
footsteps. In light of this, it is important for employers to familiarize
themselves with the E-Verify system and determine whether it is
right for their business needs.
If you have any questions regarding I-9 completion and
compliance, or the E-Verify program, please do not hesitate
to contact Isabel Rybalnik.
