Employment Eligibility I-9 Compliance and Avoiding Audits

The I-9 Employment Verification Process and Employer's Responsibilities

The Immigration Reform and Control Act (IRCA) requires employers to fill out an Employment Eligibility Verification I-9 Form for all employees hired since November 6, 1986, regardless of their immigration status.

I. INTRODUCTION

Employment Verification Eligibility will become a major concern for employers throughout the United States. Many companies do not place emphasis on complying with the I-9 employment verification eligibility process because it is viewed as an administrative process often delegated to an employee who lacks training in this important areas. Many employers have been fined for violations in their employment practices. For instance, Abercrombie & Fitch, headquartered in the Columbus, Ohio area, settled an I-9 audit in September 2010 by paying a $1,000,000 fine for serious I-9 employment verification process deficiencies discovered in its Michigan retail stores. Likewise, Krispy Kreme Corporation paid a $40,000 fine in 2009 for I-9 infractions after an audit generated by anonymous reports that the company's plant in Ohio employed undocumented workers.

A. An Ounce of Prevention is Worth A Pound Of Cure

These examples illustrate the gravity of violations that may have resulted in an unintentional poor management of this important process. Our law firm can assist your company in the prevention of a costly fine by performing an internal audit of your I-9 forms, an audit of the processes, and by implementing programs that assure compliance. The Law Firm of Shihab & Associates, Co., LPA possesses the technical and practical knowledge to represent companies in creating the best practices and to defend against I-9 audits.

II. COMPLIANCE WITH THE I-9 EMPLOYMENT VERIFICATION PROCESS

A. What is the Purpose of the I-9 Form?

The purpose of I-9 Form is to verify the identity and employment authorization of workers, in which the employee attests his status i.e. citizen, Legal Permanent Resident, or an alien authorized to work temporarily. The I-9 Form should be completed at the time of hire or within three days of such hire date. Employers are required to record that they have examined original documents from a specified list verifying the employee's identity and eligibility to work, and provide that such documents are reasonably genuine. The I-9 Form must be kept on file for three years from the date of hire or one year after the last day of the employees work, whichever is later.

B. "Actual" and "Constructive" Knowledge

IRCA prohibits any person from knowingly hiring or continuing to employ an unauthorized worker. A non-exhaustive list of conditions that would establish a rebuttable presumption of constructive knowledge includes employers who: 1) fail to complete or improperly complete the I-9; and/or 2) have information that would indicate that the alien is not authorized to work. This means that even in the absence of actual knowledge, the law will find that the employer had sufficient knowledge regarding their employee(s)' lack of work authorization and hence find such employer either civilly or criminally liable or both. An employer may not try to evade liability by hiring "independent contractors," as liability under IRCA may extend to such workers especially if they fail the test of independent contractors and especially if the employer had actual knowledge regarding such workers unauthorized work status.

The Ninth Circuit overruled an Administrative Law Judge finding of constructive knowledge where the employer had failed to notice that the employee's name was misspelled on his social security card and a lack of lamination of the social security card. More recent cases, however, have significantly broadened the interpretation of constructive knowledge to include instances where an employer is in possession of an I-9 Form which indicated the alien was out of status, but failed to re-verify.

C. The obligation to Re-verify

During the hiring process and the initial employment verification process, the employer may learn about certain facts which will give rise to future verifications. Such information may include limited duration of the employee's work authorization such as when the employee presents to the employer an employment card having a certain termination date. The re-verification procedures should mirror the initial employment verification process. The employee may choose which documents to present; the employer should not specify which documents and should not specify that the document provided must be from USCIS. Instead of re-verifying with a new form, the employer may use Section 3 of the I-9 if the original I-9 was executed within three years of the date of hire.

D. The "Good Faith" Defense

If an employer has employed an undocumented worker, good faith compliance with I-9 procedures provides a narrow but complete defense from liability. The government may rebut the presumption of "good faith" by offering proof that the documents did not appear genuine on their face, the verification was pretextual or the employer colluded with employee in falsifying the documents. The good faith defense does not apply for employers who fail to make corrections on the I-9 after being given 10 days notice to correct technical violations and they fail to so correct the infractions, or to employers who have a practice of hiring undocumented workers.