Immigration Law Update by James Parry Eyster Employing aliens and form I-9: legal considerations Employers are faced with an increasing array of laws and regulations governing their hiring practices. This Update examines employers' current responsibilities and provides general advice on satisfying the often conflicting requirements of the various departments of the U.S. government concerned with employment and immigration. Because of rapid changes in this area, an attorney's advice should be sought for individual questions. I-9 and the INS Congress decided, in 1986, that the best way to keep aliens from illegally working in the United States was to penalize employers who knowingly hired them. The Immigration Reform and Control Act, therefore, provided civil and criminal penalties for hiring unauthorized workers. It also required that employers comply with record-keeping provisions designed to establish the workers' credentials. Failure to fill out these forms can also subject employers to liability. For example, Disneyland was fined almost $300,000 for record-keeping violations. Because of increased Congressional scrutiny, the INS has become more aggressive in policing compliance as shown by recent local enforcement activities. Not only must I-9 forms be fully completed, they must be retained for up to three years. Failure to complete or maintain required forms can subject the employer to fines of up to $1000 per employee. The cornerstone of the record-keeping edifice is I-9, the employment eligibility verification form. This must be filled out for all employees hired after November 6, 1986. Many employers have discovered that correctly completing this seemingly simple one-page form is far from easy. The first part of the form requires attestations by the prospective employee of his or her status. The employer is responsible for ensuring that this section is properly completed. The second section requires the employer to attest to personal examination of the originals of certain documents proving both identity and eligibility. More than twenty different documents are acceptable, either individually (such as U.S. passports) or in pairs, one establishing identity and the other work authorization. Examples of these are driver's licenses and social security cards. Employers may photo-copy these documents, but must, in any case, completely fill out the detailed information about these documents on the form I-9. If the employee's work authorization is temporary or requires renewal, the employer must update the I-9 on or before the expiration date. This can prove especially difficult for the employer unless a calendar reminder procedure is established and routinely consulted. If an employee has lost the required documentation, an INS receipt for a replacement document application is sufficient evidence of authorization for ninety days, by which time the employee must submit the actual document. Confusion over this receipt provision has resulted in penalties for a number of employers. The only receipt acceptable is for a replacement document application. Receipts for initial work permission or for extension and renewal applications are not acceptable forms of documentation. Similarly, pre-1978 alien registration cards (form I-151) are no longer acceptable proofs of work authorization and should not be accepted as evidence of employment permission for new hires. An employer's liability is not limited to failure to obtain documents. Severe penalties also exist for knowingly accepting forged documents for I-9 verification. A pattern of acceptance of forged documentation, as well as testimony by employees of employers' support or encouragement of the submission of forged documents, has been used to criminally convict employers. I-9 and the Civil Rights Act Just as employers can face liability by asking for too little documentation, they can be penalized for asking for too much documentation. For example, some employers, fearful of hiring illegal aliens, refused to hire Hispanic applicants or requested additional proof of work. This resulted in civil penalties for the employers. The Civil Rights Act (Title VII of the U.S. Code) prohibits discrimination based on national origin. Asking for more proof of work authorization than specified for completion of the I-9 form is illegal if there is evidence of discriminatory intent. The Private I-9 Audit With increasing pressure on the INS to police employer compliance, employers are urged to review their present I-9 procedures and to conduct routine audits in order to evaluate their efforts. These reviews and audits can be conducted solely by the employer or under the guidance of an attorney experienced in this area of the law. IMMIGRATION LAW Updates [(c)1997] are written and distributed by attorney James Parry Eyster as a professional service to the international and business communities. Information provided here is not intended to serve as legal advice nor as a solicitation for legal services. phone: 313-662-8084, FAX 313-747-7540, E-mail: jeyster@counsel.com James Parry Eyster Immigration and Nationality Law 709 West Huron Street, Suite 200 Ann Arbor, MI 48103 "Helping people to study, work, and live in America."