Labor - April 2009

The New I-9 — New Employer Compliance
By Jacob M. Monty

 
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By now, all employers should be familiar with the I-9 form and the civil and criminal liability resulting from an employer’s failure to properly complete the I-9. The purpose of the I-9 form is to document the employment authorization status for each new employee hired after November 6, 1986. The I-9 is the federal government’s effort to enforce immigration laws in the workplace, as all employees must prove they are legally authorized to work in the United States. The first I-9 form made its debut in 1986 and since its first issuance has undergone several changes in both form and substance. At the moment, the newest modification in the form — and regulations pertaining to the I-9 form — should go into effect on April 3, 2009. However, be sure to check with your legal counsel to ensure U.S. Citizenship and Immigration Services (USCIS) has not postponed implementation of the new I-9 and its new regulations as the new form was supposed to go into effect February 2, 2009.

COMPLYING WITH I-9 REQUIREMENTS

The Obama administration’s new Department of Homeland Security (DHS) Secretary Janet Napolitano requested a final assessment by February 20, 2009 of immigration issues such as border security, legal immigration benefits backlogs, and electronic employment verification. She also made a specific request for the assessment of the current laws and regulations of administrative fines for employers. Currently, employers who fail to complete (or to even properly complete) and retain an I-9 as required by law face civil penalties ranging from $100 to $1,100 for each individual employee. In determining the amount of the fines, DHS looks at (a) the size of the business of the employer being charged; (b) the good faith of the employer; (c) the seriousness of the violation; (d) whether or not the individual was an unauthorized worker; and (e) the history of previous violations of the employer.

Several expect a shift on immigration enforcement under DHS Secretary Napolitano from the highly-publicized raids to more aggressive and silent tactics: investigative audits of the I-9 forms which can easily result in thousands of dollars in civil monetary penalties for employers, and are overall less costly for the government to conduct. In this heightened period of scrutiny, it is wise to invest in an attorney to review the I-9s and provide advice about what is needed to bring the I-9s into compliance, demonstrating the employer’s good faith.

CHANGES TO SECTION 1

The I-9 form has three sections, which are deceptively simple and yet employers make mistakes. The employee, the new hire, must complete Section 1 within three business days of the employee’s first day of work for pay. It is important for the employee to complete each item requested and most employers have new hires complete the I-9 during their first day of work. However, not all employees appear to understand exactly what information is requested from them and therefore fail to correctly complete Section 1 of the I-9, which can result in civil fines for the employer. For example, employees will often list their date of birth next to the signature line when in fact, the employee should be writing the date he or she completed Section 1 of the form. This mistake can cost the employer a fine because employees must complete Section 1 within 3 business days of beginning their employment.

But the most common and most grievous problem (for employers) is when the employee fails to check a box indicating their legal status. As stated before, the purpose of the I-9 is to verify that a new employee is authorized to work in the United States. Therefore, it is extremely important for the employee to check one of the following boxes: (a) A citizen of the United States; (b) A noncitizen national of the United States; (c) A lawful permanent resident; or (d) An alien authorized to work. The new change to the I-9 is the addition of (b) A noncitizen national of the United States.

Citizens
So who is a citizen of the United States? The easiest way for a person to claim U.S. citizenship is through their birth in the United States. Individuals born in certain U.S. territories are also citizens. U.S. citizens include persons born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. U.S. citizenship is also available to individuals who were born outside of the United States to at least one U.S. citizen parent. Also, individuals who immigrate to the United States legally can also apply for naturalization, which is the process by which legal permanent residents become U.S. citizens.

Noncitizen Nationals
A noncitizen national of the United States is a person born in American Samoa and certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad. The Trust Territory of the Pacific Islands includes territories of the Republic Marshall Islands, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and the Republic of Palau.

A Lawful Permanent Resident
A person who is a lawful permanent resident (LPR) has officially gained immigration benefits through their application with USCIS. An LPR’s most important immigration benefit is the right to reside and take employment in the United States on a permanent basis. But unlike a U.S. citizen and noncitizen national, LPRs can lose their immigration benefits if they break the law.

An Alien Authorized to Work
In this category, the individual is allowed to reside and work in the United States on a temporary basis which means that their particular set of immigration benefits expire. This means employers must be vigilant in ensuring that all employees who checked this box remain “authorized” to work throughout the employment relationship or the employer risks knowingly employing an individual who is not authorized to work in the United States. It is therefore important for employers to keep track of all of these expiration dates, as individuals with temporary employment authorization will require re-verification by either completing Section 3 of the I-9 or a new I-9. If a new I-9 is completed, all previous I-9s completed by the employee should be attached to the new I-9.

CHANGES TO SECTION 2

The information requested in Section 2 remains the same. Employers must still physically examine the original documents presented by the employee, which establish his/her identity and employment authorization within the three business days of the date employment begins for pay. The employer may choose to copy the documents presented, but if copying is the adopted practice, it is a best practice for the employer to copy the documents both front and back. But copying the documents does not relieve employers of the requirement to fully and properly complete Section 2. Employers must complete the information pertaining to the documents presented: (1) document title; (2) issuing authority; (3) document number; (4) expiration date, if any; and (5) the date employment begins.

Section 2 is affected by a change in the List of Acceptable Documents, which are the only documents employees are able to present (and the only documents an employer can accept) to the employer who must then record the information under Section 2. Before discussing the changes, remember that documents in List A demonstrate both the employee’s identity (i.e., contains a picture) and employment authorization, and that is why only one document is accepted if the employee decides to present a document under List A. However, if the employee does not present a document appearing in List A, the employee must present two documents. One document must establish their identity and must be a document listed under List B. The second document must prove their ability to work legally in the United States and must be a document listed under List C.

No Expired Documents
The biggest change under the new I-9 is that employers can no longer accept expired documents. Requiring unexpired documents should reduce the use of fraudulent or stolen documents. Employers must therefore pay particular attention to expiration dates on the documents they examine and dutifully record applicable expiration dates on the I-9.

U.S. Passport Card
Under List A, employers can now accept either a U.S. Passport or U.S. Passport Card. The U.S. Passport is a booklet and a U.S. Passport Card is similar in size to a driver’s license.

Foreign Passports
Two types of foreign passports now appear under List A as proof of identity and employment authorization. The first is a foreign passport notation on a machine-readable immigrant visa that is pre-printed with a temporary I-551 notation (LPR status confirmation). The second is a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 demonstrating valid status pursuant to the Compact of Free Association with the United States.

Form I-688, I-688A, I-688B
The temporary resident card (I-688) and employment authorization cards (I-688A and I-688B) are no longer acceptable and no longer appear under List A. The main reason these cards are no longer acceptable is because they are no longer issued by USCIS. So how can you tell if an employment authorization document is for I-688A or I-688B? The form number appears in small font size on the back of the employment authorization document, usually on the bottom.

RECOMMENDATIONS

While there is more to the I-9 than meets the eye and more than can be discussed in this article, it is important for employers to seek assistance in bringing their I-9s into compliance. For those savvy employers, it would be prudent to have a third party review and assess their level of I-9 compliance.

Jacob M. Monty is managing partner of Houston’s Monty Partners, LLP, the largest Hispanic-owned law firm in the Southwest. Monty is board certified in labor and employment law by the Texas Board of Legal Specialization. He regularly advises employers on immigration compliance and often represents employers faced with Immigration and Customs Enforcement raids and I-9 audits. Monty Partners, LLP is an employment, labor, and business immigration law firm. Please visit www.montypartners.com for more information. Monty Partners offers a free consultation to car wash operators who call (281) 493-5529 and identify themselves as Auto Laundry News subscribers.

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