WORKPLACE COMPLIANCE AND EMPLOYER SANCTIONS UNDER FEDERAL IMMIGRATION LAW

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1 WORKPLACE COMPLIANCE AND EMPLOYER SANCTIONS UNDER FEDERAL IMMIGRATION LAW Overview To stem the flow of illegal immigration into the United States, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA). IRCA sought to diminish the lure of American jobs for foreign workers by penalizing employers who knowingly hire unauthorized aliens that is, non-u.s. citizens who are unauthorized to accept employment in this country. As well, IRCA established new paperwork and record-keeping rules that apply to the employment of all persons, including U.S. citizens. It is now unlawful for employers to hire any individual without complying with the IRCA verification of work status and record-keeping requirements. Verification is completed by using the Form I-9, Employment Eligibility Verification form (See Appendix B). All employees hired since November 6, 1986 must document their identity and authorization to work in the United States. IRCA also provides protection against employment discrimination based upon national origin or citizenship. Oddly, the Immigration Act of 1990 (IMMACT 90) made it harder for employers to verify work eligibility without violating the antidiscrimination provisions of IRCA. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (1996 Act) therefore enhances the effectiveness of employment verification by making it easier for the employer to comply with all applicable legal requirements. Social security issues often overlap with I-9 considerations. We address these joint issues at the conclusion of this chapter. I-9 Compliance Under IRCA s I-9 employment eligibility verification requirements, an employer must (1) not knowingly hire, or continue to employ, any person not authorized to work in the United States; and must (2) verify the identity and employment eligibility of every new employee, whether the person is a U.S. citizen or foreign national, hired on or after November 6, Form I-9 is available on the World Wide Web at The I-9 verification procedure provides a record for government investigators and also affords employers a good faith defense against potential charges. However, even if an employer completes the employment eligibility verification paperwork properly, it can nevertheless be subject to severe penalties if it has knowledge of the unauthorized status of an employee. On the I-9 Form, the employer must verify the employee s identity and authorization to work. Note that on the issue of authorization to work there are three categories: (1) U.S. citizens; (2) lawful permanent resident aliens (green card holders), who have an unlimited right to work in the United States; and (3) a variety of other non-u.s. citizens having some type of time-limited work authorization (which may or may not be limited to a specific employer). Section 1 of the I-9 Form must be completed by the employee on the day of hire. Hire means the actual commencement of employment for wages or other remuneration. The employee must attest on the I-9 Form, under penalty of perjury, that he or she is not an unauthorized alien, and that the documents presented are genuine and relate to him or her. The employee may choose among several acceptable 1

2 documents to submit to the employer to verify identity and authorization to work and an employer may not insist on seeing a specific type of document. Where documents show that an employee is an alien with only limited, temporary work authorization from the INS, the employer later must reverify the alien s work eligibility before it is scheduled to expire in order to determine whether that authorization has been extended so as to continue the alien worker s employment. The employer must complete section two of the I-9 Form within three business days of hire and attest, under penalty of perjury, that it has examined original documentation presented by the employee, that such documentation appears on its face to be genuine and relates to the named individual, and that to the best of the employer s knowledge the employee is authorized to work in the United States. These forms must be maintained in the employer s files for three years or until one year after any termination of employment, whichever is longer. Whether a document appears to be genuine incorporates a standard of reasonableness. Employers are not expected to be experts in detecting fraudulent documents. This standard provides a good faith defense even if documents turn out to be fraudulent. Employers need simply apply general knowledge and common sense: if nothing seems unusual, that should be sufficient. If the documents do not reasonably appear on their face to be genuine or to relate to the person presenting them, the employer must not accept them. An employer generally may not insist on seeing a specific type of identification or work eligibility document, nor may it request more or different documents than are required. (See Antidiscrimination Rules below.) If an employee is unable to present the required documents within three business days of the date of hire, he or she must produce a receipt showing that he or she has applied for a replacement of the needed documents. Thereafter, the employee must present the actual document within ninety days. (Employees hired for less than three business days must produce the actual verification documents and the I-9 must be fully completed by the employer on the date of hire.) Acceptable verification documents must include one document from Document List A (establishing both identity and legal work authorization), or one document each from Document List B (establishing identity only) and from Document List C (establishing legal work authorization). These lists are presented in the chart that follows. An interim rule was published in the Federal Register on September 30, 1997, designating documents acceptable for the employment eligibility verification (Form I-9) process. The rule, which took effect immediately, affects only the list of documents that employees may present to establish both identity and eligibility to work (List A) and the receipt rule. The rule makes no changes to List B or List C. Its goal is to maintain the status quo to the extent permitted under the new law until the Immigration and Naturalization Service (INS) has completed a more extensive document reduction effort. The INS will withhold enforcement of civil penalties associated with these changes until a final rule is in place. Employers will not be penalized if, while the interim rule is in effect, they mistakenly accept documents that were previously acceptable but were deleted from the list. Other enforcement activities will continue. Employers should continue to use the existing Form I-9 (11/21/91 version) under the interim rule. The INS is developing proposed rules to revise and streamline the employment verification process. This will include a new Form I-9. After the final rule is published, the INS will issue a revised version of the Handbook for Employers, pub. M-274. The entire process was expected to be completed some time in 1999, with a public education effort by the INS thereafter. As of December 2001, this process has not yet been completed. The interim rule amends the regulations to: 2

3 remove four documents, which establish both identity and eligibility to work the Certificate of United States Citizenship (INS Form N-560 or N-561), the Certificate of Naturalization (INS Form N-550 or N-570), the Unexpired Reentry Permit (INS Form I-327), and the Unexpired Refugee Travel Document (INS Form I-571) from List A; redesignate the foreign passport with temporary evidence of permanent resident status, and limit use of the foreign passport with a Form I-94 to nonimmigrants authorized to work for a specific employer; clarify and expand the receipt rule under which work-eligible persons who are unable to present a required document may present a receipt. These provisions include: Application for a replacement document. A person may present a receipt showing application for a replacement document. The interim rule extends the receipt rule to reverification, so that, provided the individual is authorized to work, a receipt for an application to extend is now acceptable. An application for initial work authorization or an extension of expiring work authorization is not acceptable. After 90 days, the person must present the actual document. INS Form I-94 indicating temporary evidence of permanent resident status. A lawful permanent resident may present the arrival portion of the Form I-94 (Arrival-Departure Record) that the Service has marked with a temporary I-551 stamp and has affixed with the alien s picture. The Service may issue this document if an alien is not in possession of his or her passport and requires evidence of lawful permanent resident status. After 180 days, the person must present Form I-551, the Alien Registration Receipt Card or Permanent Resident Card (commonly referred to as the green card ). INS Form I-94 indicating refugee status. A refugee may present the departure portion of the Form I-94 containing a refugee admission stamp. After 90 days, the person must present either an unrestricted social security card (along with a List B identity document) or an INS Form I-766, employment authorization document. A technical correction will be made to add Form I-688B to the documents that may be presented after 90 days. In addition, please note that Form I-766 (Employment Authorization Document), although not listed on the 11/21/91 version of the Form I-9, is an acceptable List A document #10. Form I-151, is no longer an acceptable List A document #5. However, Form I-551 remains an acceptable List A document. The law allows, but does not require, employers to make copies of the employee s verification documents to attach to the I-9 Form. However, the employer must either make copies of documents for all employees or for none at all. In other words, it may not make copies of verification documents only for some workers. Therefore, an employer should give careful thought in deciding on its I-9 verification policy based on individual needs and circumstances. Once an employer establishes that policy, it should become the employer s standard practice and be carried out in a consistent manner for all employees. Employers also should be clear as to which workers are proper candidates for the I-9 verification procedure. Following is a summary of the rules regarding who must undergo the I-9 procedure. All new hires must undergo I-9 verification. This includes all U.S. citizens or foreign nationals, as well as persons who are hired as contractors or day workers, but who are paid by the employer and who work under the employer s direct supervision (see the Independent Contractors discussion below). New hires, in most cases, do not include employees who are on a paid or unpaid leave of absence, on a temporary layoff due to lack of work, are not working because of a strike or other labor dispute, 3

4 are reinstated after a wrongful discharge, or are engaged in seasonal employment. Employees hired before the effective date of IRCA, November 6, 1986, are considered grandfathered and are exempt from completing I-9 Forms. Employees transferred internally within an organization, (i.e., transferred to a different subsidiary, affiliate, or division) ordinarily do not need to undergo the I-9 verification procedure. Workers referred by labor unions or recruiters must undergo I-9 verification, since the union or recruiter is not required to conduct such verification. Current employees generally are not required to undergo the I-9 verification procedure, with four exceptions: (1) the employer has failed completely to comply with IRCA requirements until now; (2) an I-9 audit of the employer s records uncovers serious omissions or other deficiencies; (3) the employer has been involved in a merger, acquisition, or reorganization and the resulting new employer may be responsible for the I-9 records of the predecessor employer; or (4) an employee s employment authorization is time-limited, such as L-1 or H-1B nonimmigrants, F-1 students with practical training approved, or asylum applicants with an interim Employment Authorization Document, INS Form I-688B. (See Reverification below.) Casual hires. Another area excluded under the IRCA employer sanctions provisions is that of casual hires. Casual hires are individuals who provide domestic services of a sporadic, irregular, or incidental nature in a private home. Unfortunately, this exclusion is so narrow as to apply to very few situations for example, baby-sitters or others who only occasionally perform duties principally inside a private home. Thus, for example, regularly scheduled maid service does not qualify for this exclusion and I-9 verification is required. In addition, persons who work outside the house (for example, yard work or exterior painting) are not casual hires. Therefore, IRCA technically requires an individual homeowner to verify even the work eligibility of the neighborhood kid who is paid to mow the lawn weekly. Independent contractors. Verification of work authorization is not required for independent contractors. Therefore, the distinction between an independent contractor and an employee for I-9 purposes is crucial, and a determination must be made on a case-by-case basis. Basically, if a person is an employee of an independent contractor and receives no direct payment or supervision from the employer, the employer does not need to complete the I-9 verification procedures. The difficulty comes with cases that are not so clear and require judgment on the part of the employer. This would include persons who are employed by outside contractors but who receive direct supervision from the employer. Here, it may be prudent for the employer to complete an I-9 for these types of workers. The best guide is the rule on dual employees applied by the Internal Revenue Service (IRS). If an employer has obtained an IRS ruling on this issue or an opinion from its accountants that certain workers must be considered employees for tax purposes, that ruling or opinion should be applied as well to IRCA coverage, and such workers should undergo I-9 verification. Another important consideration for these types of employees is the length of the assignment. Whereas a temp who fills in for a day or a week would not normally be considered an employee, a worker on a longer-term or indefinite temporary assignment might be considered an employee even if his or her services are obtained through an independent contractor. Even if a worker indeed qualifies as an independent contractor, employers can be subject to employer sanctions penalties if they otherwise know the person is not authorized to work in the United States. Employers are barred by IRCA from seeking indemnity bonds from individual employees. However, IRCA does not bar indemnity clauses between business entities. Therefore, employers should incorporate into their contractual agreements with independent contractors and service suppliers provisions which call for indemnification of the employer if fined for IRCA violations relating to workers supplied under the contracts. 4

5 Recertification. Certain rehires do not require the completion of a new Form I-9. This includes employees who are rehired within three years of the initial completion of the Form I-9, as long as the employee remains eligible to work in the United States that is, there was no expiration date for employment eligibility listed on the original Form I-9 or the expiration date has not yet passed. However, if the employee is no longer eligible to work based on the information on the initial Form I-9, the employer must reverify the employee s employment status at the time of rehiring. Again, this no reverification rule does not apply to rehires more than three years after the initial completion of the Form I-9. Reverification situations include employees with temporary work authorization valid only through a specific date. The employer must reverify the employment eligibility of the employee by or before that expiration date. Reverifications can be conducted on section 3 of the I-9 Form. However, we strongly recommend that a new I-9 Form be completed in full whenever reverification arises. Otherwise, the situation can quickly become confusing, with a potential discrimination claim in the making. As with virtually all other aspects of I-9 compliance, uniformity is vital. Reverifications are complex and typically should be discussed with an immigration specialist. Special provisions for employer associations permit employers that are members of employer associations to use each other s I-9 verifications under certain circumstances. However, employers who wish to take advantage of this provision should exercise caution: if an alien so hired is later discovered to be unauthorized to work in the United States, the employer will be presumed to have known at the time of hire that the individual was not so authorized. This provision of the 1996 Act remains to be implemented, and it remains to be seen whether it will prove to be of any real benefit to members of employer associations. Additional compliance tips for employers: Employers should advise job applicants in the employment application itself that they will be called upon to present identity and work authorization documents on their first day of work. The I-9 Form should be completed at the same time as other employment forms (W-4, insurance items, etc.). Employers should keep I-9 records separate from other personnel files. The I-9 Form may contain information on an employee s age, national origin, and citizenship status. Maintaining separate I-9 records can help employers avoid the appearance that some later personnel action was impermissibly based upon information on the I-9 Form. Employers may not discriminate against individuals on the basis of national origin or citizenship (i.e., foreign sounding, foreign looking, etc.) or require more or different documents from a particular individual. This means that employers must treat all employees the same when completing the I-9 Form and must apply these practices uniformly to all employees. The fewer people conducting the I-9 verification for the employer the better. Whenever possible, employers should designate only one or two representatives (per office) to conduct I-9 verifications, review documents, and sign the I-9 Forms on behalf of the employer. The best practice is to select employer representatives with good attention to detail and sensitivity to the potential liabilities that 5

6 employers face for deficient compliance practices. Review the entire I-9 Form for completeness. A major compliance deficiency found in employers I-9 records is a failure to complete the employer attestation portion fully in section 2. (See Common Mistakes Employers Make in I-9 Preparation and How to Avoid Them below.) Employers have a continuing obligation to ensure work eligibility of their employees. This usually arises in one of two contexts: either where the individual s temporary work authorization is expiring or where the employer in some way learns that an employee is not authorized to work. If circumstances exist that lead the employer to determine that the employee fraudulently executed the initial I-9, then the employer should not continue to rely on that form. (An employee s known false statement on the I-9 is a felony and is not excused by subsequent grants of work authorization or lawful status.) The employee should complete a new I-9, if employment is to continue. The employer may apply, in a nondiscriminatory manner, any policies it applies generally to suspected criminal conduct in the workplace or to suspected false statements in employment application materials. In any event, the initial Form I-9 should be retained as evidence of compliance at the time of hire. Government Enforcement Of Employer Sanctions The INS and U.S. Department of Labor (DOL) are the primary enforcement entities concerning IRCA. The INS has the primary enforcement role and only it can levy actual fines. However, various DOL agencies also will review employers I-9 records as part of their other audits (such as EEOC, OFCCP, OSHA, Wage & Hour, etc.) and will report any apparent I-9 compliance deficiencies to the INS for further action. At present, the DOL compliance force consists of over fifteen hundred inspectors, who are estimated to make over sixty thousand employer inspections per year. The INS compliance force was more than doubled in 1996 and now consists of approximately seven hundred INS special agents assigned exclusively to employer sanctions investigations. Inspection Of I-9 Records Employers must make their Form I-9 records available for inspection upon request and presentation of credentials by officers of either the INS or the DOL. No subpoena or warrant is required. The employer, however, must be given advance notice of at least three business days to produce the Forms I-9 for inspection. Moreover, where an employer has several offices and maintains I-9s only at one central location, the INS must go to that location: the employer need not move I-9s around the country. The employer also has the option of bringing the requested records to the INS office. The government may use the I-9 Form solely for purposes of enforcing the employer sanctions provision of IRCA and other related provisions of federal law pertaining to such things as false statements, perjury, and document fraud. Thus, for example, the Form I-9 cannot be used by the IRS for tax compliance or even by the INS to locate and deport illegal aliens. The INS can select employers for inspection on its own initiative, either at random or based on targeted industries that have a higher than normal profile for employing unauthorized aliens. In practice, employers are targeted principally based on complaints the INS receives from private individuals or other sources. The INS is not, however, required to establish probable or reasonable cause to conduct 6

7 an inspection of verification documents. Although the INS typically contacts employers through formal written notice, this is not always the case. INS inspectors sometimes simply appear unannounced and without a subpoena or warrant at an employer s place of business. While the INS must inform the employer of its right to three-day advance notice, it might also suggest that the employer consent to an immediate review of I-9 records. In this situation, the employer generally is well advised not to consent and to contact legal counsel immediately. The attorney then can speak directly with the INS officials to arrange the INS inspection and can counsel the employer about how best to handle the inspection and conduct an internal audit of its I-9 records to address record-keeping deficiencies. The INS can, of course, obtain a subpoena or warrant if there is probable cause to suspect a violation. In this instance, the INS inspectors will arrive with a subpoena or warrant and require immediate production of the employer s I-9 and other employment records. The employer has no choice but to produce immediately the I-9 documents and other documents listed in the subpoena or warrant. The employer also should immediately contact its attorney, but cannot impede the INS agents access to the listed documents. Subpoenas or warrants also can be issued to allow INS access to an employer s premises in order to conduct a raid and arrest illegal alien workers. Antidiscrimination Rules Out of concern that IRCA s employer sanctions could have unintended adverse consequences for some authorized U.S. workers who may look or sound foreign, Congress also included a provision that prohibits employers from discriminating on the basis of national origin or citizenship status in the hiring, recruiting, or discharging of individuals for employment. This provision does not apply, however, where the employment decision is already covered by Title VII of the 1964 Civil Rights Act. IRCA therefore prohibits national origin discrimination by employers having four to fourteen workers. The U.S. General Accounting Office reported in early 1990 that employer sanctions under IRCA had caused widespread discrimination against Hispanics, Asian-Americans, and other visible ethnic minorities. Therefore, Congress amended IRCA in the 1990 Act to provide that the job applicant and only the job applicant has the option to select which of the several designated documents to submit to the employer in order to establish identity and eligibility to work. Thus, employers are prohibited from asking employees to produce more or different documents than required for I-9 verification. However, the employer is now protected unless it has the intent to discriminate when requesting more or different documents during the I-9 verification procedure. This applies to violations on or after September 30, IRCA provides that it is not an unfair immigration-related employment practice for an employer to choose an equally or better qualified United States citizen over a foreign national. Furthermore, nothing prohibits the otherwise lawful use of a language requirement as a bona fide occupational qualification. As well, employment decisions which may have an adverse impact on aliens, but which are not intentionally discriminatory, are apparently outside the scope of IRCA. Employers generally may refuse to hire authorized aliens where the job requires security clearance, such as work on defense contracts. However, this exception to the antidiscrimination provisions does not create a blanket exemption for all positions. In each case the U.S. Department of Justice (DOJ) 7

8 will examine the situation to ensure that the particular job legitimately is required by law to be filled by a United States citizen. IRCA established an Office of Special Counsel (OSC) within the DOJ to investigate and prosecute charges by individuals alleging an unfair immigration-related employment practice under section 274B of the Immigration and Nationality Act (INA). In determining whether an employer is covered by IRCA, the OSC counts all part-time and full-time employees working for the employer on the date that the alleged discrimination occurred. The DOJ may subpoena documents and witnesses as part of an investigation prior to issuance of a complaint, as well as inspect the employer s I-9s. The OSC will investigate a charge and determine whether there is reasonable cause to issue a complaint. During the investigatory process, the OSC is now statutorily empowered to examine I-9 Forms of the employer. If the OSC decides to file a charge, it will serve a notice of the charge on the employer. A complaint must be filed within 180 days of the date the alleged unfair immigration-related employment practice occurred. Complaints are heard before an administrative law judge (ALJ). If, after hearing the evidence, the ALJ determines that an employer has engaged in an unfair immigration-related employment practice, the judge may issue a cease-and-desist order which requires the employer to pay a civil penalty and/or to rehire the individual who was a victim of discrimination, with or without back pay. (See Civil And Criminal Penalties below.) In addition to substantially increasing the monetary penalties, the 1990 Act also specifies additional forms of relief that an ALJ can order in an antidiscrimination case. An ALJ can now order section 274B violators to: (1) post notices to employees about their rights under INA section 274B, (2) educate all personnel involved in hiring about IRCA s Anti-Discrimination and Employer Sanctions Provisions, (3) remove a false personnel review or warning from an employee s personnel file, and (4) lift any restrictions on an employee s assignments or work shifts. The 1990 Act strengthened IRCA s prohibition against retaliatory discharge of employees who file charges of discrimination. As a result of the first suit filed against an employer by the DOJ for retaliatory discharge of an employee under IRCA, the OSC warned that it will not tolerate any interference with the right of workers to file charges under the anti-discrimination provision of [IRCA]. Although IRCA now penalizes employers for hiring unauthorized aliens, employers may be held liable for retaliatory discharge of such workers under the National Labor Relations Act, for minimum wage violations under the Fair Labor Standards Act and for discrimination under Title VII of the Civil Rights Act. Employers also may be required to provide benefits to unauthorized workers under state workers compensation laws. Document Fraud Provisions One of the more forceful changes brought about by the 1990 Act was the provision which imposes civil penalties for document fraud on the part of the employee and the employer. As originally enacted, this provision made it unlawful for anyone to knowingly forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of the INA; to use or attempt to use, possess, obtain, accept, or receive any forged, counterfeit, altered, or falsely made document to satisfy any requirement of the INA; to use or attempt to use any document lawfully issued to someone else for the purpose of satisfying an INA requirement; or to accept or receive a lawful document issued to someone other than the person possessing it for the purpose of complying with the employer sanctions provisions. 8

9 While these provisions apply primarily to foreign employees, an employer who knowingly accepts such a document, even though it is facially valid, violates this provision. Administrative case law and INS regulations have defined knowing to include reckless conduct and constructive knowledge (for example, knowledge which may be inferred through notice of certain facts and circumstances). The 1996 Act makes it unlawful to prepare an INS petition or other document containing statements or material misrepresentations known to be false. This includes Form I-9. Previously established case law by the Office of the Chief Administrative Hearing Officer (OCAHO) took the position that the term falsely made referred to the false execution of a document, not a valid document containing false information. Specifically, the OCAHO held the position that as long as the Form I-9 was properly executed, despite knowledge by the employee and employer of a forged document being used to satisfy IRCA verification requirements, the I-9 Form was considered to be a valid document and not fraudulently created or falsely made. However, the 1996 Act added a new definition for falsely make to mean preparing or providing an application or document with knowledge or in reckless disregard of the fact that the application or document contains a false, fictitious, or fraudulent statement or material representation, or has no basis in law or fact, or otherwise fails to state a material fact. Under this new definition, if an employer knowingly accepts a forged document, it may be fined both for accepting this document and for fraudulently creating an I-9 Form. Civil And Criminal Penalties Under IRCA IRCA s employer sanctions provisions impose civil and criminal penalties on employers who knowingly hire, recruit, or refer for a fee aliens who are not authorized to work. Employers who fail to make and keep certain records verifying an individual s eligibility to work also are penalized. If the INS determines that a company has violated IRCA s requirements by knowingly hiring or continuing to employ aliens not authorized to work in the United States, the following penalties apply: first offenses include civil fines of $275 to $2,200 for each unauthorized worker; second offenses include fines of $2,200 to $5,500 for each unauthorized worker; and every offense after the second offense includes civil fines of $3,300 to $11,000 for each unauthorized worker. If an employer has engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers, a criminal penalty is provided of up to a three thousand dollar fine for each unauthorized worker (in addition to any other civil penalties assessed) plus up to six months imprisonment for the individual officials of the employer who engaged in the overall pattern or practice violation. If the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers, a civil action may be brought against the employer requesting relief, including a permanent or temporary injunction, restraining order, or other order against the employer. For example, a pattern or practice charge is always possible where the INS has advised an employer of multiple violations of knowingly hiring or continuing to employ unauthorized workers and the employer takes no action and simply continues business as usual. Technical or paperwork violations involve I-9 records that have not been maintained for some or all employees, or where a mistake has been made in completing the I-9 Forms. There is a civil penalty of $110 to $1,100 for each paperwork violation. 9

10 The 1996 Act provides that an employer is considered to have complied with its obligations notwithstanding a technical or procedural failure if there was a good faith attempt to comply. This exemption, however, will not apply if the INS itself discovers the violation, explains the violation to the employer, and gives the employer a ten-day period in which to cure the violation, and the employer does not do so. The good faith exemption also does not protect employers who engage in pattern or practice violations. Current INS guidelines for determining how these employer sanctions penalties should be imposed include five specific factors to be considered in determining fine amounts where an employer fails to verify employee identity and work authorization, and also includes both paperwork violations and knowing hire cases. These five factors are: the size of the employer s business; the employer s good faith, if any; the seriousness of the violation; whether the individual involved was an unauthorized alien; and whether the employer has a history of previous violations. With regard to violation of IRCA s antidiscrimination provisions, employers can be fined up to one thousand dollars for each affected individual, and can be ordered to hire with or without back pay individuals injured by the discrimination. Employers also can be subjected to a cease and desist order to prohibit future discriminatory practices. An Executive Order issued by the President creates an additional sanction that may be imposed against government contractors who violate IRCA s prohibitions against the knowing employment or continued employment of unauthorized aliens. Such employers could be barred from procuring government contracts for one year. Violation of the civil document fraud provisions can result in fines of $275 to $2,200 for a first offense and $2,200 to $5,500 for subsequent offenses for each document falsely made or received. Related Criminal Penalties Apart from the civil and criminal penalties that can be imposed on employers under IRCA, criminal penalties under other federal law relate to an employer s immigration-related activities. Parallel to the civil document fraud penalty, criminal provisions penalize document fraud under 18 U.S.C Fraud and misuse of visas, permits, and other documents can result in penalties against individuals of up to ten years imprisonment, with fines against individuals and employers according to federal sentencing guidelines. Yet another very serious violation which could apply in certain circumstances is the criminal charge of harboring illegal aliens. Under section 274 of the INA, it is a violation for any person knowingly, or in reckless disregard of the fact that an alien has come to or remains in the United States in violation of law, to conceal, harbor, or shield from detection such an alien in any such place, including any building or any means of transportation. Thus, harboring encompasses any conduct tending substantially to facilitate an alien s remaining in the United States illegally. While, ordinarily, the mere employment of illegal aliens does not by itself constitute harboring, in a recent case, an employer was charged with 10

11 violation of the harboring statute due to (1) continuing employment of known illegal aliens, (2) failure to complete I-9 Forms for unauthorized workers, and (3) refusing admittance to INS without warrant and aiding aliens to leave the workplace without detection by INS. Violation of this provision can result in fines against the employer and/or individuals according to Federal Sentencing Guidelines and individual imprisonment ranging from five to ten years. Another possible criminal charge involves perjury. For example, under 18 U.S.C. 1622, an employer can be charged with falsely attesting on the employer attestation portion of the I-9 Form if an employee is rehired using the same documents previously identified as fraudulent by the INS. A final general criminal violation that can be charged under certain circumstances is obstruction of justice, 18 U.S.C For example, an employer subject to INS investigation can face obstruction of justice charges if it seeks to thwart the investigation by action such as termination of suspect employees prior to removal by the INS, destruction of evidence, or other maneuvers calculated to undermine the INS investigation. These civil and criminal penalties are called to the attention of employers not to cause undue alarm but simply to illustrate the very serious consequences that can result if an employer handles its I-9 verification obligations and response to the INS investigation other than in a strictly proper manner. Pilot Verification Programs The 1996 Act requires that the Attorney General implement three employment eligibility confirmation pilot programs. These are yet to be implemented. Under the programs, the Attorney General must establish a confirmation system through a toll-free telephone line or other toll-free electronic media that responds to inquiries about the identity and employment eligibility of individuals. In cases of nonconfirmation, the Attorney General must ensure that secondary verification is provided within ten working days after the date of tentative nonconfirmation. These pilot programs are: (1) the basic program, currently being offered in California, Florida, Illinois, New York, Texas, and Nebraska); (2) the citizen attestation program offered to all employers in the states of Arizona, Maryland, Massachusetts, Michigan and Virginia; and (3) a machine-readable document program, currently limited to employers in Iowa. Employers in the basic program are required to complete Forms I-9 using a more limited list of documents and to record a social security number (SSN) and if the individual is not a U.S. citizen alien number. Within three working days of the hire, the employer will use the confirmation system to verify the information. If the information is confirmed, it must be so recorded on the Form I-9. The employer must, as usual, retain the I-9 Forms for inspection. If there is a nonconfirmation of the information, the burden shifts to the employee, who must either contest or not contest the nonconfirmation. The nonconfirmation is tentative and cannot be used to terminate an employee until it becomes final. Once the nonconfirmation becomes final and the employer does not terminate the employee, the employment becomes a knowing hiring of an unauthorized alien and subject to penalty. The citizen attestation program largely resembles the basic program. The citizen attestation program may not operate in a state unless the state issues driver s licenses or similar documents that contain a photograph of the bearer and have been issued through procedures that make the document sufficiently resistant to counterfeiting, tampering, and fraudulent use. Under the citizen attestation program, if an 11

12 employee attests to being a U.S. citizen on an I-9 Form, the confirmation process does not need to be completed. The document review requirement of the I-9 procedure may be satisfied by examining a U.S. passport or other document establishing identity. The employer must retain an I-9 Form and make it available for inspection. The machine-readable program also generally follows the basic program. This program is likewise limited to states where driver s licenses and similar identification documents include machine-readable social security account numbers. Employers participating in this program will have to obtain the devices needed to read the machine-readable documents. If the employee presents a document that includes such a feature, the employer must make an inquiry through the confirmation system by using the machine-readable information. Participation in any of the pilot programs will be strictly voluntary for most employers. Exceptions will include employers who are the subject of orders finding that they have violated the law s employer sanctions or antidiscrimination provisions. However, by participating in the pilot program and complying with these procedures, employers will establish a presumption that they have complied with verification procedures. Common Mistakes Employers Make In I-9 Preparation And How To Avoid Them As noted earlier, any mistake found on an I-9 Form, regardless of how minor, can result in a civil penalty of one hundred and ten dollars to eleven hundred dollars for each paperwork violation. It is therefore imperative that employers develop and maintain an accurate I-9 employment eligibility verification system in order to comply with the law and to be prepared in the event of an INS audit. Where the I-9 Forms are fully and properly completed and retained, employers will generally be protected from both paperwork and knowing hire charges. Employers can take steps to establish good faith compliance in case the INS or DOL comes knocking on their door. The more common mistakes made in preparing I-9 Forms are listed below: Employee and/or employer fail(s) to sign and date the I-9 Form. Employee does not complete section 1 of the I-9 Form on the day of hire. Employer does not examine verification documents and complete section 2 of the I-9 Form within three business days of hire. Employer fails to insert the employee s start date for work in the CERTIFICATION block of section 2. Employee does not check one of the three blocks in section 1 attesting to his or her status in the United States or to provide the required information for the second and third blocks. This is especially crucial where the employee checks Box 3 as a noncitizen/nonpermanent resident worker. If the third block is checked, the alien number/admission number and expiration date of temporary employment authorization must be listed. Employer fails to keep track of the expiration date of a Box 3 employee s temporary time-limited work authorization for purposes of conducting mandatory reverification. The employer must reverify an employee s time-limited employment authorization on or before the expiration date listed on the I-9 Form in order to determine whether that authorization has been extended. Failure to reverify is a 12

13 clear paperwork violation and will also subject the employer to a knowing hire violation if the alien employee in fact has no continuing work authorization. Employer lists too many identity and/or employment authorization documents in section 2. The I- 9 Form should include only one document from List A, OR one document from List B and one document from List C. Listing more than this is considered over-documenting and could result in a discrimination charge against the employer. Employer representative reviews photocopies of the employee s verification documents rather than the original documents, as required. The employee is required to present in person his original verification documents to the employer representative. The employer representative should never accept photocopies of documents for I-9 verification purposes. Employer fails to ensure that the employee s verification documents appear on their face to be genuine. The employer representative should look to see that the typestyle on the document is consistent and does not contain obvious white-out or typeovers. Whether a document appears to be genuine incorporates a standard of reasonableness. Again, employers are not expected to be experts in detecting fraudulent documents. They need simply apply general knowledge and common sense. Employer fails to ensure that the employee s verification documents actually relate to the employee that is, information contained in the documents does not match other information available to the employer about the employee. The employer representative should look for a match in the employee s name and date of birth on the documents and assure they are consistent with other information. The employer should also review any other descriptive information on the documents and make a visual comparison with the employee (e.g., general age, height, eye color, etc.). Employer fails to keep copies of verification documents presented either for all employees or for none at all. The law permits, but does not require, employers to make copies of the employee s verification documents to attach to the I-9 Form. It is important that the employer s policy in this regard be standardized and applied consistently for all employees. Thus, the employer should not make document copies only for some workers. It is also an IRCA violation to make document copies and keep them anywhere other than with the relating I-9 Form. Without going into an elaborate explanation of rationale here, it is our strongly held opinion that employers should not keep copies of I-9 verification documents. Employer representative who sees the verification documents is not the same employer representative who signs the I-9 Form. The employer representative who reviews the verification documents must be the same person that signs the I-9 Form. Employer does not keep the I-9 records separate from its general personnel records. Because I-9 records may contain information on an employee s age, national origin, and citizenship status, maintaining separate I-9 records can help employers avoid the appearance that some later personnel action was influenced by information from the I-9 Form. Moreover, as a practical matter, segregated I-9 records allow an employer to assemble these records quickly in response to a DOL or INS inspection. 13

14 SPECIAL ISSUES RELATING TO SOCIAL SECURITY NUMBERS With increasing frequency, clients are receiving notices from the Social Security Administration (SSA) that employee social security numbers (SSNs) do not match SSA records. This requires careful handling in order to comply with social security law and possible I-9 requirements, while not crossing into the field of national origin discrimination. The following steps should be used in complying with I-9 and Social Security issues. Frequently, I-9 and Social Security issues overlap, but they must be analyzed and handled separately in order to avoid claims of wrongful termination and/or national origin discrimination. With respect to Part II below, dealing exclusively with Social Security compliance, we make several suggestions which are only proposed policies for the employer to implement uniformly, rather than actions required by the federal government. These policies include: (1) notifying all prospective employees that the employer will verify SSNs on or before the first day of work, and (2) uniformly subjecting employees to immediate termination if the SSA is unable to confirm the validity of the SSN. Again, both of these policies may be company policies but are not required by any governmental agency. If your company already provides, as part of the application process, that false applications will result in dismissal, and the job application requests the applicant s SSN, your existing policy may be broad enough to allow for termination if the SSN provided turns out to be false. With respect to a current employee who suddenly provides a new name and number, the fact that the employer may have invited that employee to come clean and provide corrected information, may make termination more problematical. For example, if an employee now has a valid SSN and the employer gives that employee an opportunity to cure past fraudulent representations, the employer may be prevented from using this against that employee. There are no known cases addressing this issue to date. We are not aware of any tax reason that would prevent an employer from requiring that valid SSNs be provided as a condition for employment or further employment. (There may certainly be I-9 reasons for not making such a demand for example, when a SSN is not essential to the I-9. See our discussion of essentiality in Part One of the I-9 guidelines below.) With respect to all policies, it is important that they be uniformly applied in order to avoid claims of wrongful termination or national origin discrimination. As to the issue of tax withholding, the employer may also want to consider a policy of advising employees that if they do not complete a W-4, that the employer will withhold taxes as required by law at the single, zero exemption rate. I. I-9 Guidelines Please carefully follow these steps in addressing any discrepancy brought to your attention with regard to a purportedly invalid or non-matching or otherwise defective SSN for an employee: Part One Examine the employee s I-9 Form to determine whether a social security card was used to complete Form I-9. 14

15 A. If not, then the I-9 does not need to be revised and should be returned to the file drawer. B. If a SS card was used, then determine whether it was essential to the I It is essential if only two documents were relied upon by the employer and the SS card was one of those documents, and there was no List A document provided. In this case, proceed to Part Two. 2. It is not essential if a List A document was provided or if more than two documents were presented, so long as the two documents, without the SS card, satisfy I-9 requirements. In this case, the I-9 does not need to be revised and should be returned to the file drawer. You may, if you wish, notate the I-9 with the employee s new SSN if one exists, but are not required to so. If you do notate, please follow carefully the notation procedures set out below at Part Two, section A in bold print. Part Two When an essential SS card is found on the I-9, do the following: Tell the employee that the SSA advises that the SSN given on the I-9 is not correct. Ask the employee to tell you the correct SSN. Part Three A. If the employee provides a new SSN, then notate the I-9 as indicated later in bold print in this paragraph. If the employee presents a SS card, look at it to make sure that it appears genuine. The employee is not required to show you the card. (If your company, as a policy, photocopies the SS card, then copy; otherwise, do not copy the SS card if the employee presents it.) Notate the correct social security number by writing in pen onto the original I-9 Form and then enter signature and date beside the correction. Be certain not to erase, white out, or otherwise destroy or obliterate the original I-9. Instead, simply notate, date, and sign the original I-9 and then return it to the file drawer. B. If the employee provides no new SSN, then ask if the employee has any alternative document, other than a SS card, that is on the list of acceptable I-9 documents. If the employee does not present an alternative document within three business days, then termination may be appropriate but you should not terminate before speaking with company legal counsel. If the employee does provide an alternative document that satisfies the I-9, then notate the original I-9 according to the procedure set forth in the bold print of the paragraph above. C. If the employee provides a new SSN, but it is the same number as the one that is already on the I-9, then ask the employee for an alternative document, other than an SS card, that is on the list of acceptable I-9 documents. If the employee does not present an alternative document within three business days, then termination may be appropriate but you should not terminate before speaking with company legal counsel. If the employee does provide an alternative document that satisfies the I-9, then notate the original I-9 according to the procedure set forth in Part Two, section A in bold print. For any employee who provides a new SSN, notify the personnel within the company responsible for reporting withholdings to the SSA. That person will then amend the company records to reflect the new SSN so that appropriate withholding and SSA reporting can be accomplished. 15

16 II. Social Security Compliance No one can have more than one SSN at one time, although, under certain circumstances, a new number may be issued. A new card will be issued for name changes, but typically the number will remain the same. A new number may be issued for good reasons, such as stolen identification. A valid SSN must have a total of nine digits. The first three digits are referred to as the area, the next two as the group, and the last four as the serial. No SSNs with a 000 area number, or an area number in the 800 or 900 series, have been issued. Also, no SSNs with a 00 group or 0000 serial number have been issued. While the first three digits once designated the state in which the card was initially issued, these numbers are now randomly issued, as are the last 4 digits. Tax Reporting To The IRS Federal tax laws, administered by the IRS, require an employer to obtain from an employee a valid SSN. An employee s SSN must be used on tax reports filed with the IRS by the employer (such as W- 2) and be included on each Employee s Withholding Allowance Certificate (IRS Form W-4) provided by the employee to the employer. The IRS may impose penalties on an employer that doesn t include the correct SSNs in its reports. For social security and income tax crediting purposes, incorrect or missing SSNs interfere with the crediting of payroll taxes withheld from employees and paid by the employer. The SSN is also widely used for state and local tax reports. Federal tax law does not require that an employee have a SSN on the employee s first day of work but if the employee has a SSN, the employee generally must provide it to the employer on that date. If the employee does not have a SSN as of the first day of work, the employee must apply for a SSN within seven days or by his termination date, if sooner. (Treas. Reg (b)-2(a)(2)) Under IRS regulations the following process has been established for getting the SSN from the employee: If the employee has the card available, the employee shall show it to the employer. If the employee has a SSN but the card is not available, the employee shall provide the number and the exact name as it appears on the card. If employee has applied, but not received the card but has received a receipt for his SSN application, the employee shall show such receipt. If the employee cannot meet the requirements of 1-3 (above), the employee must furnish a written statement (Exhibit A) to the employer with the following information: employee s full name, present address, date and place of birth; father s full name; mother s full maiden name; employee s sex; a statement as to whether the employee has filed an SS-5 (social security application) and if so, the date and place of filing and a copy, if available, of the application (the statement must be dated and signed by the employee); and if a number is issued after employment starts, the employee is to provide that number as soon as it is received, even if received after the employment is terminated before receipt. 16

17 If by the time W-2 returns are to be filed (usually by January 31 of the year following the year hired), the employer has never received a SSN, SSA receipt or an employee statement (Exhibit A), then the employer is required to attach to the employee s W-2, a completed SS-5 Form, signed by the employer. Effectively, under this step the employer is applying for a SSN for the employee. If the employer has the receipt, copy of the SS-5, or the Statement, then it should be sent with the W-2 Form. Verifying Social Security Numbers As the IRS requires that the name and number on the social security card be used on all records, returns and statements for employees as well as claims, it is important to be sure the information received is accurate from both an employee and employer s perspective. The SSA has set up Enumeration Verification System (EVS) to allow employers to check employee name s and number data against SSA s records. To verify, at one time, up to five names/numbers, call SSA at (800) More than five and fewer than fifty-one verifications can be made through the local Social Security office. More than fifty requests must be processed by the SSA Client Identification Branch [(410) ]. This requires registration with that Branch. Income Tax Withholding And Social Security Numbers Personal income tax withholding is owed on all wages paid to an employee. (Internal Revenue Code 3402). The amount of taxes withheld is based on exemptions claimed by an employee on IRS Form W-4. Only an employee who in 2000 was refunded all federal income taxes withheld because the employee had no federal tax liability and who expects a refund of all 2001 federal income taxes is exempt from withholding for 2001, and then only if such employee properly completes and duly executes an IRS Form W-4. The Code expressly provides that on or before the date of commencement of employment with an employer, the employee shall furnish the employer with a signed withholding exemption certificate relating to the number of withholding exemptions which he claims, which shall in no event exceed the number to which he is entitled. Code Section 3402(f)(2)(a). A completed W-4 must include the employee s SSN. Treasury Regulations provide that every individual to whom an account number (i.e., social security account number) has been assigned shall include such number on any withholding exemption certificate filed with an employer. Treas. Reg (f)(2)-1(d). Treasury Regulations also provide that if an employer receives an invalid withholding exemption certificate, he shall consider it a nullity for the purposes of computing withholding; he shall inform the employee who has submitted the certificate that it is invalid and shall request another exemption certificate from the employee. If the employee who submitted the invalid certificate fails to comply with the employer s request, the employer shall withhold from the employee as from a single person claiming no exemptions. Treas. Reg (f)(2)-1(e). Basically, until such time as an employee provides a properly completed W-4, all wages will be subject to the maximum income tax withholding rate. Recommended Social Security Procedures 17

18 Job applications, offer letters and related documents should be reviewed and revised to advise prospective employees that a valid SSN or such other information as required by the IRS regarding SSNs should be provided on the first day of work. Advise applicants that the SSN will be verified and that a SSN with a false name or number is grounds for immediate dismissal. Step 1 On or before first day of employment: New hire should be asked if he/she has a SSN. If employee has a SSN, he/she should be asked to show card, if it is available, and if not, provide number and name appearing on card. Action: Copy name and number exactly as they appear on the card use for all tax records. If employee has no SSN, ask employee if SSN has been applied for. If employee has applied for SSN, Action: Ask for application receipt and copy receipt. If employee has not applied for SSN, Action: Have employee complete a social security statement (Appendix A) and give an SS-5 to employee to complete and file with the SSA within seven days. Ask employee to provide a copy of the application when filed. Step 2 If employee provides SSN: Action: As of that date contact SSA at (800) to verify name and number. Record all information provided by SSA. If verified: Action: Stop review and advise the employee, in writing, that the number has been verified, but that the employee must immediately notify the company of any future name and/or number changes. If not verified: Action: Immediately notify the employee, in writing, that SSA has not been able to confirm the validity of the employee s SSN and provide any explanation received from SSA regarding validity. Ask employee 18

19 to double check name and number provided. [PROPOSED POLICY: If the information previously provided is not changed, after such review, have employee verify name and number by making written statement that the name and number is correct or allow employee one day to produce social security card used or be terminated. If the card is produced, verify with SSA. If verified, stop review.] Step 3 Give employee IRS Form W-4 on the first day of employment to be returned in three days or such other time frame provided by the payroll department. If SSN is missing and the application for the SSN is pending, application pending should be inserted by the employee. Step 4 Company verifies that the SSN received as part of Step 1 is the same as the one that appears on the W-4. If not: Action: Have employee correct form. Step 5 Send W-4 to payroll department and coordinate with payroll department on any necessary follow-up. Step 6 Maintain in the employee s personnel file a copy of the W-4 and all of the information obtained about the SSN. Step 7 If the employee did not have a SSN as of the date of the hire, require the employee to keep the company informed of the status of the SSN application (SS-5 Form) and require the employee to provide the SSN immediately upon receipt. Step 8 Establish tickler file for follow-up on SSNs for employees without numbers. Consider follow-up at weekly intervals until a copy of the application is provided by the employee and then bi-weekly thereafter. Step 9 If the employee is terminated before the SSN has been received and verified, have the employee complete Exhibit A, as part of the exit interview process unless the SSN or the statement is already on file and advise the employee, in writing, to send the number when received for proper crediting of tax payments. Action: Establish exit interview procedure. 19

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