It is a common misconception of employers that if they do not sponsor foreign workers, they do not need to be worried about immigration laws. However, there is one notoriously confusing form, created by the Immigration Reform and Control Act of 1986 (IRCA), that must be used by all employers who employ an individual in the U.S. That form is the I-9, and an employer’s failure to complete it properly or comply with its requirements could lead to enormous fines and even criminal sanctions.
The Form I-9 is a mandatory form that all employers must complete for every new employee hired after November 6, 1986. Its purpose is to verify that new hires are authorized for employment in the U.S. Since it is such a widely-used form, employers are often surprised at just how confusing I-9 compliance can be. One of the most common areas of uncertainty relates to the employee documentation that is required to establish an employee’s identity and work authorization. Employers must be knowledgeable about whether the documents presented by an employee to complete the I-9 are sufficient. In addition to the risk of accepting improper documentation, if employers request specific documents from certain employees (including foreign workers), this could constitute a discriminatory documentary practice prohibited by federal law.
Below are some of the common pitfalls of I-9 compliance:
Scenario 1: You don’t recognize the documents
Most HR directors can recognize the more popular documents that a U.S. citizen presents to verify identity and/or work authorization. A U.S. passport, U.S. driver’s license, social security card without restrictions, and U.S. birth certificate, are all fairly straightforward as long as the employer recognizes which documents satisfy both requirements (such as a U.S. passport), and which only satisfy one or the other and requires a companion document (such as a U.S. driver’s license which satisfies the identity verification and an unrestricted social security card which satisfies work authorization verification).
With foreign workers, this verification process can become more complicated. There are multiple forms of documentation that a foreign worker may present that an HR director may have never seen before. However, if there is any question as to the sufficiency, the employer may not request that the employee provide a specific document instead. Employees must be allowed to present any documentation that they choose from the Lists of Acceptable Documents. If an employee presents insufficient documents, employers can only refer the employee to the Lists of Acceptable Documents. If the documents presented are unfamiliar and the employer is unsure whether they are sufficient, the employer should consult legal counsel, or carefully review the I-9 instructions including the list of acceptable documents, as well as the M-274 Handbook for Employers that provides pictures of sample documents to aid the employer.
Scenario 2: You are presented with a social security card that is not valid for employment
If an employee presents a permissible form of identity verification, and a social security card, no problem…right? Wrong! While it is true that an unrestricted social security card is sufficient to confirm work authorization, not all social security cards accomplish this. The Social Security Administration may issue social security numbers to individuals who are not authorized to work; these cards may contain restrictions such as “Not Valid for Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization.” This will be evident from the document on its face. If a social security card with a restriction is the only document presented by an employee that is meant to show employment authorization, an employer should refer the employee once again to the list of acceptable documents. Again, it is critical that the employer not request a specific document from the employee; it is up to the employee what to present as long as it is compliant.
Scenario 3: The employee fails to produce the required documents
Pursuant to U.S. law, employees must produce the required documents for an I-9 (or in some cases, an acceptable receipt for a document), within three business days of the date employment begins. It is natural to sympathize with employees who do not have the required documentation, and it can be a real burden on employers who have already made arrangements for a new hire to begin working, to terminate an employee for failing to provide the documents required by the I-9. However, there can be serious repercussions for the failure to comply with this requirement. The failure to timely fill out a Form I-9 is a violation in itself. Worse, if the employee actually does not have work authorization, an employer could be held liable for an even more serious immigration violation: employing unauthorized workers. Therefore, an employer in this situation should terminate the employee. The employee can always be rehired upon the receipt of proper documentation.
While the implications of noncompliance with I-9 requirements can seem daunting, proper training of HR professionals can help alleviate some of those concerns. Employers should also consider conducting an internal I-9 audit to identify any potential issues that may be corrected, or prevented in the future.
Jennifer Ciarrocchi is an Associate in PK Law’s Education, Labor and Employment Group where she represents local school boards, superintendents, colleges, and private sector employers in sexual harassment, employment discrimination, substance abuse, privacy, employment contracts, special education, and Title IX matters. Jennifer also has more than five years of experience in immigration law. Her current practice includes advising colleges about immigration laws that impact their student body and staff. She is a member of the NAFSA: Association of International Educators. Jennifer can be reached at 410-938-8709 or firstname.lastname@example.org.