The United States Government Increases Work Place Audits to Enforce Hiring Rules

1. WHAT IS A WORK PLACE AUDIT?

The US Immigration and Customs Enforcement office ("Ice") has announced that it will increase audits of employers to make sure that they do not hire illegal immigrants. As recently as November of 2009 , ICE announce sending out over 1000 notices of inspection to inform employers that they will be reviewing their employment eligibility verification documentation. In particular they will examine the Form I - 9

2. WHAT IS AN I-9?

An I-9 is a form required by a law passed in 1986 called the Immigration Reform and Control Act. This law requires that all employers, no matter how small verify that each employee hired after November 6, 1986 is authorized to work in the United States. This requirement applies to US citizens also.

3. WHAT INFORMATION IS NEEDED IN THE I-9?

The form requires the employee to provide proof of eligibility to work with one document from List A as set forth in the instructions to form I-9 or two documents from list B and C .

List A documents are:

  • US passport or passport card
  • Permanent resident card
  • Foreign passport
  • Employment authorization document

List B documents are:

  • drivers license or ID card issued by a State or certain U.S. possessions with a picture or information such as name, date of birth, gender, height, eye color and address
  • ID card issued by Federal, state or local government agencies with the same information as listed above.
  • School ID card with a picture
  • Voter's registration card
  • US military card or draft record
  • Military dependent ID card
  • If under 18, a school record or report card, doctor record, day-care record.

List C documents are:

  • Social security card
  • Original or certified Birth certificate

For a more complete list see the instructions to Form I-9.

4. WHAT PENALTIES APPLY IF YOU DON'T COMPLY?

In a press release issued by government in 2009, it is clear that the government is looking to increase enforcement against employers. Failure to complete a form I- 9 could result in a civil penalty from $110 to $1100 per employee. If an employer knowingly hires an unauthorized aliens there could be a civil penalty from $375 - $3200 for a first offense up to $16,000 per unauthorized alien for multiple offenses. Additionally there is a possible criminal penalty.

5. IN DETERMINING THE AMOUNT OF THE PENALTY WHAT DOES THE GOVERNMENT CONSIDER?

The following factors go into the decision on the amount of the penalty:

  • The size of the business
  • The good faith effort by the employer
  • Whether the employee was an unauthorized alien
  • History of previous violations.

6. WHAT IF AN EMPLOYEE REFUSES TO COMPLETE A FORM I-9?.

You do not have to hire an employee who refuses to complete the form.

7. CAN I REFUSE TO HIRE SOMEONE BECAUSE OF THE PAPER WORK REQUIREMENT OF THE I-9?

You must treat all employees or potential employees equally when verifying employment authorization. An employee or potential employee could sue the employer for discrimination if they are treated differently based upon national origin or citizenship status. You cannot set up different employment verification standards for employees or require different documents because of the employee's national origin or citizenship status. EACH EMPLOYEE MUST BE ALLOWED TO CHOOSE THE DOCUMENT THAT HE OR SHE WILL PRESENT FROM THE LIST DESCRIBED ABOVE.

8. WHEN DOES THE FORM I-9 HAVE TO BE COMPLETED?

Section 1 of the Form I- 9 must be completed on the date employment begins. However the identification information must be completed within three business days of employment. If the employee does not have all of the required documentation in that time, the employee should give the employer a receipt showing they have applied for a re-issuance of the identification within that time period and they must produce a valid replacement within 90 days of the beginning of employment.

9. WHERE CAN I FIND MORE INFORMATION ON THESE RULES?

The United States Citizenship and Immigration Services and has published the "Handbook for Employers" which has good information for employers regarding the I- 9. You can find it at: http://www.uscis.gov/files/nativedocuments/m-274.pdf