Form I-9 and anti-discrimination compliance

Section 274A of the Immigration and Nationality Act, as amended, mandates that employers hire only U.S. citizens and aliens who are authorized to work in the United States. Employers must verify employee identity and eligibility by using the Employment Eligibility Verification Form I-9.

Virtually every employer is required to properly complete and maintain an I-9 for each employee. Completed I-9 forms must be retained for three years from the date of hire or one year from the date of termination, whichever is later. While Form I-9 is only one page long, improper completion or discrimination in the use of the form are serious issues.

In July 2009, Immigration Control and Enforcement implemented a comprehensive strategy designed to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful work force.

Consequently, ICE began to undertake more audits and investigations into I-9 compliance; it established the Employment Compliance Inspection Center in Crystal City, Va., and increased the number of field and compliance inspection officers.

Since the inception of its new strategy, more than 6,000 employers have been audited with size and type of business no longer a major consideration. Moreover, the program is lucrative with more than $10 million collected in fines in FY 2011. In FY 2012, ICE intends to audit more than 3,000 worksites in concentrated surges.

In addition to stepping up its enforcement of I-9 compliance, the federal government, through the Office of Special Counsel for Immigration-related Unfair Employment Practices and the EEOC, has stepped up its efforts to enforce the laws that prohibit discriminatory practices in the recruitment, hiring, employment eligibility verification process and termination of persons eligible to legally work in this country.

Unlike Title VII, which covers employers with 15 or more employees, the Immigration and Nationality Act — or INA — covers employers with as few as three employees with regard to citizenship and immigrations status discrimination. There is a fine line between legitimate I-9 compliance and overzealous efforts that could expose a company to discrimination claims.

Examples of discrimination on the basis of citizenship or immigration status include treating applicants or employees differently because of their place of birth, country of origin, native language or accent; hiring only American citizens (unless U.S. citizenship is a bona fide job requirement); keeping copies of eligibility and identity documents for only alien employees authorized to work rather than all employees; document abuse such as specifying which documents an employee must present to prove eligibility to work; or asking certain employees to present more than the required forms to prove their eligibility for work in the U.S.

I-9 audits

Every employer should know the general course of events when an audit occurs. First, all audit notices should be served in person or by certified mail. The employer must be provided with three days’ advance notice of the audit and, if it provides original I-9 documents to the auditor, the employer is entitled to a receipt.

Employers also should expect the audit to include requests for documents other than the I-9 forms. These requests may include requests for payroll records, a list of current employees including date of hire, a list of terminated employees with date of termination and Social Security no-match letters.

At the conclusion of an audit, ICE will issue a notice stating that the employer is in compliance. The employer may receive a warning notice or it may receive a notice of intent to fine. A warning notice will typically state that no penalty is warranted, ICE expects future compliance, and there will be a follow-up inspection within six months.

If a notice of intent to fine is issued, the employer has 30 days to contest the findings or may choose to quickly try and resolve the matter. If the matter reaches an administrative law judge, the ALJ may reduce the proposed fines but may not raise them.

The amount of fine assessed depends on the size of the business, employer’s good faith in completing I-9s, seriousness of violation, whether the employer has employed unauthorized aliens and its general track record in this area.

In the event that the Office of Special Counsel for Immigration-related Unfair Employment Practices brings, and prevails in, a matter involving allegations of citizenship or immigration status violations, remedies include civil fines, issuance of a cease and desist order, issuance of an order to take specific corrective actions, hiring specified individuals, back pay awards, education of hiring personnel, and continued oversight by OSC or ICE.

Limit exposure

There are a number of ways to limit possible exposure to claims of I-9 non-compliance and citizenship or immigration status discrimination. Some recommended steps are:

•           Read and refer to the Handbook for Employers found on the USCIS website (www.uscis.gov). It is a free compliance guide and should be made easily accessible to all hiring managers and human resources personnel;

•           Remember that it is the employer’s responsibility to ensure that I-9s are completed properly and in a timely manner and to make sure it becomes a matter of course within the organization;

•           Establish a written compliance policy and procedural guidelines and train all employees involved in the hiring process;

•           Conduct a self-audit and correct violations when found (shows a good-faith effort to comply);

•           E-verify if necessary (federal contractors);

•           Consider electronic I-9 completion and document storage but practice due diligence. Any electronic system must ensure the integrity, accuracy and reliability of collected data, allow for easy record retrieval and legible hard copies, and provide audit trails;

•           When completing I-9s, avoid document abuse (and discrimination claims) by examining and accepting original documents that reasonably appear genuine and relate to the employee;

•           Do not require employees to provide specific documents; all documents listed on the back of the I-9 form should be accepted;

•           Base employment decisions on objective factors and not on appearance, accent, name or citizenship status.