Category Archives: Immigration
The federal government has released new I-9 forms that are required to be used by all employers beginning tomorrow, on May 7, 2013. The new forms should be used only for newly hired employees. As most employers are aware, the I-9 form is used to verify that a new hire is legally authorized to work in the United States. A copy of the new I-9 form is available here.
While the new forms do not make significant changes in the verification process, there are a few differences. Both the old and new forms have three sections: Section 1 to be completed by the employee; Section 2 to be completed by the employer; and Section 3 to be completed if there is a need to re-verify an employee’s eligibility to work in the United States. The new form also asks for an employee’s email address and telephone number so that Immigration and Customs Enforcement (ICE) and the Justice Department’s Office of Special Counsel (OSC) can conduct follow-up interviews of employees more easily when I-9 audits of employers are performed. While the Bush administration appeared to target its enforcement activities against undocumented workers, the Obama administration seems more focused on targeting employers for work eligibility violations related to I-9 forms. ICE and OSC have stepped up their enforcement actions during the past few years in targeting employers for I-9 violations. ICE audits of employer I-9 forms have increased from over 250 in 2007 to over 3,000 in 2012, according to data provided by the Associated Press.
Additionally, the new form is now two pages instead of one page. While the new form more prominently requires the employee to attest to his or her citizenship or immigration status (and thus eligibility to work in the United States), the two-page format may increase retention costs for larger employers, and may increase the risk that one or both pages of the I-9 form may be misplaced or lost, which is tantamount to a failure to complete the I-9 form.
Takeaway: Be sure to start using the new version of the I-9 form no later than May 7, 2013. The failure to use the correct form may subject an employer to liability if ICE conducts an I-9 audit. With an increasing emphasis on employer I-9 audits by the current administration, it is more important than ever that employers ensure that I-9 forms are properly completed when an employee is hired.
In a previous blog we noted that the current Form I-9 technically expired on August 31, 2012, but that the United States Citizenship and Immigration Services (USCIS) had issued notice to employers to continue to use that form until a new form was released. Well, that time has come.
On March 8, 2013, the USCIS announced a new Form I-9 that employers should start to use immediately. The form is available here. Prior Form I-9s dated 2/2/2009 and 8/7/2009 may continue to be used until May 7, 2013. As of May 8, however, employers must use the new Form I-9 only.
While the format of the new Form I-9 is essentially the same as previous versions of the form, the Form I-9 now consists of two pages rather than one. The accompanying instructions also have been expanded and provide more detailed guidance regarding completion of the form.
Takeaway: Employers should begin using the new Form I-9 effective immediately, but in no event later than May 7, 2013. If you should have any questions regarding the new Form I-9 or the completion process, please do not hesitate to contact us.
To properly document that new employees are authorized to work in the United States, employers are required to make sure a federally-issued Form I-9 is completed on each employee hired after November 6, 1986. The form must be fully completed within three business days of the employee’s first day of work. As part of this process, the employer must review certain identifying documentation presented by the employee. The Form I-9 is not filed with any governmental agency, but is subject to audit and inspection by the Department of Homeland Security and the Department of Labor.
The Form I-9 is approved and authorized by the federal Office of Management and Budget (OMB). The form has evolved over time and occasionally a new Form I-9 is approved by OMB. Employers should take care to make sure that they are using the currently effective Form I-9.
The current Form I-9 has an OMB expiration date of August 31, 2012. The United States Citizenship and Immigration Services (USCIS) agency recently issued a notice that despite this expiration date, employers should continue to use the currently available form until further notice. Accordingly, employers should continue to use this form after August 31, 2012.
Takeaway: Despite the August 31, 2012, expiration date on the current Form I-9, employers should continue to use that version until further notice from USCIS.
As all employers know, the Immigration Reform and Control Act of 1986 requires employers to verify an employee’s work authorization status through the use of an “I-9” form. Generally, the biggest pitfall employers faced with the I-9 process was ensuring the paperwork was completed correctly, in a timely fashion, and maintained properly in case of an audit. Unfortunately, the Department of Justice is now focusing on the I-9 process for a completely different reason: National Origin Discrimination.
Along with race, gender, disability, age, and other “protected classes,” employers cannot discriminate on the basis of an employee’s national origin. Although this prohibition may evoke images of signs from a bygone era that stated: “No Irish Need Apply,” it is now becoming an issue for employers that take seriously immigration laws. On the one hand, an employer may be liable for hiring undocumented workers – who are, by definition, not United States citizens. On the other hand, an employer cannot treat a non-U.S. citizen applicant or new hire differently than a United States citizen.
Recently, the Department of Justice brought suit against a major producer and processor of eggs and egg-related products, with forty locations in six states, and approximately 1,850 workers. The employer was enrolled in the Government’s “E-Verify” program. According to the Complaint, the employer also utilized commercially-available third-party software “that integrated both the process of generating an electronic Form I-9 and access to the E-Verify program.” This program, according to the Department of Justice, “guided authorized users through the electronic Form I-9 process and the E-Verify program by soliciting information about a new hire and, based on the information provided, presented a series of additional informational screens.”
The software, the Government alleges, then sent the user on one of two paths, depending on whether the new hire was a U.S. citizen or a non-U.S. citizen. If the new hire was a U.S. citizen, the software instructed the user to accept verifying documents listed in Columns A, B, or C on the I-9 form. In contrast, if the new hire was not a U.S. citizen, the software instructed the user to only accept Column A documents. Based upon those allegations, the Department of Justice claims that the employer, “knowingly treated individuals differently in the employment eligibility verification process on account of their citizenship status.”
As relief, the Department requested, among other items:
- That the affected individuals receive “full remedial relief” ”including back pay, front pay and/or reinstatement;”
- An order for “injunctive measures to overcome the effects and prevent the recurrence of the discriminatory practices”; and
- Finally, that the employer “pay an appropriate civil penalty as determined by the Administrative Law Judge for each work-authorized non-U.S. citizen who is found to have been subjected to the pattern or practice of discriminatory employment eligibility verification practices alleged in this Complaint.”
If the Department of Justice is successful, the price paid by the employer for utilizing a new piece of software will be steep. The employer is potentially liable for front pay, reinstatement, and a per-person civil penalty, for possibly hundreds of individuals.
Takeaways: The intersection of employment laws and immigration laws can be complicated and mistakes can be costly. Even when an employer takes action, in good faith, to comply with one set of rules and regulations, the employer can, in the process, become liable for violations of other rules and regulations. Most importantly, it is worth remembering that software developers that create useful, time-saving tools may not always consider the legal implications of the applications created. When implementing new software, or enrolling in new online tools, having counsel review the system upfront may save significant expenses later if the software creates more problems than solutions.
The Immigration Reform and Control Act (IRCA) makes it illegal for employers to employ knowingly an unauthorized alien, but it also prohibits employers from discriminating against employees on the basis of national origin or citizenship status. Here’s what employers need to know about the IRCA:
Prohibition Against Employing Unauthorized Aliens
The IRCA states that it is illegal for an employer “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.” The IRCA also generally makes it illegal to hire an individual for employment in the United States without verifying his or her eligibility to work in the United States through the I-9 process. Good faith compliance with the I-9 process is an affirmative defense to an allegation of knowing employment of unauthorized aliens. 8 U.S.C. § 1324a.
Prohibition Against Discrimination On the Basis of National Origin or Citizenship Status
The IRCA make it illegal for an employer to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment because of: (i) the individual’s national origin; or (ii) the individual’s citizenship status. However, the IRCA states that it is not illegal for an employer “to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.” 8 U.S.C. § 1324b.
Takeaways: In some circumstances, it can be difficult for employers to comply with the dual purposes of the IRCA. Employers must be concerned not only with avoiding employment of unauthorized aliens, but also with avoiding discrimination against individuals based on their citizenship status or national origin. Careful compliance with the I-9 process is one of the most effective ways to minimize an employer’s risks in this area.