August 17, 2007
For more than two decades, employers within the United States have been required to verify the work authorization of new hires (8 USC 1324A et seq.). This verification is performed by reviewing documentation tendered by the new employee to confirm identity and immigration work authorization and memorializing the results in a form I-9. The form is retained by the employer for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. The form is not filed with the government.
The entire I-9 form fits on a single sheet of paper. It is relatively easy to gather the information.
On Section 1 of the form, the employee gives his or her name, address and other personal information, and certifies whether he or she is a U.S. citizen, permanent resident or alien authorized to work. Section 1 must be completed and signed on the first day the employee reports for work. On Section 2 of the form, the employer records which documents were presented by the employee to prove lawful immigration work status. Section 2 must be completed within three days after employment begins.
The part of the verification process that involves checking documents is a bit more complicated. The verification requirements were the result of a compromise hammered out in Congress in 1986 to achieve two very different goals: on the one hand, eliminate unauthorized employment of undocumented aliens, and on the other prevent unlawful discrimination in employment on the basis of foreign citizenship or national origin. As a result, for example, employers who demand specific types of documents or more documents than are specified by law as adequate to prove immigration status may be penalized for unlawful discrimination. In certain cases, this may include civil damages if a disparate impact upon one of the protected classes of job applicants occurs. An overly demanding employer who rejects documents that "on their face” seem reasonably authentic may also be subject to civil administrative penalties. The seemingly inconsistent purposes of the law require employers to tread softly, resulting in a delicate balancing act roughly akin to “don’t ask, don’t tell”.
Government agents including those from the Department of Justice and Department Homeland Security can inspect employers to monitor compliance with the I-9 requirements. Penalties for record keeping violations range from $100 to $1,000 per
occurrence and for violation of verification procedures from $110 to $1,100 per occurrence. Possible penalties for knowingly employing an unauthorized alien range from $250 for a first occurrence to $10,000 for more than two occurrences. Criminal penalties of up to $3,000 in fines and imprisonment of up to six months are possible where a "pattern or practice" of knowingly employing unauthorized workers is demonstrated. Penalties for national origin discrimination range from $250 for a first occurrence to $10,000 per occurrence for more than two occurrences. Because separate agencies are tasked with the enforcement of immigration status laws and illegal discrimination laws, each with a different objective, an employer’s actions can easily be misinterpreted as intentionally wrongful even when good faith efforts have been used to comply. This unfortunate dilemma has contributed to a negative populist image of employers and occasional but increasingly publicized enforcement actions against brand-name companies.
For more information contact John Messing at [email protected]
John H. Messing is a lawyer and a technologist. He practices immigration law in Tucson, Arizona. He is the Chairman of LegalXML-OASIS, which is an international XML standards body for legal applications. He is a member of the governing council of the Science and Technology Law Section of the American Bar Association. He holds several patents for electronic signature technologies. For more information about him visit http://www.lawonline.biz/JohnMessing.htm