Coming Changes in Employment Verification Procedures

John H. Messing, Esq.
October 17, 2007 — 4,761 views  
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For more than two decades, employers within the United States have been required to verify the work authorization of new hires (8 USC 1324A et seq.). This verification is performed by reviewing documentation tendered by the new employee to confirm identity and immigration work authorization and memorializing the results in a form I-9. The form is retained by the employer for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. The form is not filed with the government.

The entire I-9 form fits on a single sheet of paper. It is relatively easy to gather the information.

On Section 1 of the form, the employee gives his or her name, address and other personal information, and certifies whether he or she is a U.S. citizen, permanent resident or alien authorized to work. Section 1 must be completed and signed on the first day the employee reports for work. On Section 2 of the form, the employer records which documents were presented by the employee to prove lawful immigration work status. Section 2 must be completed within three days after employment begins.

The part of the verification process that involves checking documents is a bit more complicated. The verification requirements were the result of a compromise hammered out in Congress in 1986 to achieve two very different goals: on the one hand, eliminate unauthorized employment of undocumented aliens, and on the other prevent unlawful discrimination in employment on the basis of foreign citizenship or national origin. As a result, for example, employers who demand specific types of documents or more documents than are specified by law as adequate to prove immigration status may be penalized for unlawful discrimination. In certain cases, this may include civil damages if a disparate impact upon one of the protected classes of job applicants occurs. An overly demanding employer who rejects documents that "on their face” seem reasonably authentic may also be subject to civil administrative penalties. The seemingly inconsistent purposes of the law require employers to tread softly, resulting in a delicate balancing act roughly akin to “don’t ask, don’t tell”.

Government agents including those from the Department of Justice and Department Homeland Security can inspect employers to monitor compliance with the I-9 requirements. Penalties for record keeping violations range from $100 to $1,000 per occurrence and for violation of verification procedures from $110 to $1,100 per occurrence. Possible penalties for knowingly employing an unauthorized alien range from $250 for a first occurrence to $10,000 for more than two occurrences. Criminal penalties of up to $3,000 in fines and imprisonment of up to six months are possible where a "pattern or practice" of knowingly employing unauthorized workers is demonstrated. Penalties for national origin discrimination range from $250 for a first occurrence to $10,000 per occurrence for more than two occurrences. Because separate agencies are tasked with the enforcement of immigration status laws and illegal discrimination laws, each with a different objective, an employer’s actions can easily be misinterpreted as intentionally wrongful even when good faith efforts have been used to comply. This unfortunate dilemma has contributed to a negative populist image of employers and occasional but increasingly publicized enforcement actions against brand-name companies.

Electronic Employment Verification
One highly touted technology solution is the Electronic Employment Verification Basic Pilot, run by the Department of Homeland Security in conjunction with the Internal Revenue Service. Initially, a for-pay service for State agencies to verify federal entitlement benefits and exclude undocumented alien persons, the program also includes a voluntary component for private businesses and their designated agents to verify the status of new hires by a check of document numbers against the names of their true owners in government databases, without charge. Matching results of a name of a social security account holder and his or her social security number are available instantaneously as employment authorization verification, right on the spot. Currently the portion of the pilot program that serves private employers is voluntary only, but all that is about to change.

The Buck Rogers-like effect of instantaneous computer matching at the time of hire has won over staunch supporters. All proposed versions of congressional immigration reform, whether conservative or liberal in both 2006 and 2007 included a provision mandating some form of electronic I-9 employment verification. In the hubbub of proposed immigration reform this year, according to the August 6, 2007 New York Times, state legislatures considered 1,404 immigration measures and enacted 170 of them. (For a listing of state immigration legislative efforts, please consult the National Conference of State Legislature’s website, http://www.ncsl.org/programs/immig/2007ImmigrationUpdate.htm#Public

With the failure of Congress to pass comprehensive immigration reform, Arizona passed a state law to make the federal electronic system mandatory. Colorado and Georgia also enacted laws requiring state contractors to verify employment eligibility of workers electronically using the federal system. The Arizona law, which affects all employers in the state and carries stiff civil penalties such as withdrawal of all licenses including charters to do business for repeat offenders, was immediately challenged in the courts but it is likely the law will pass judicial scrutiny on the grounds that it regulates employers’ business activities, which is a legitimate state law concern, and not federal immigration policy, which arguably is not. The Arizona law and court challenge is being watched nationally. Illinois refused to make the electronic employment verification system mandatory, largely because of allegedly high rate of false matches, both positive and negative.

Incomplete or improperly entered social security records are said to cause failed verifications, complicating the hiring of otherwise fully qualified employees, a charge that was supported by a 2005 Government Accountability Office study of the electronic employment eligibility verification program. See Government Accountability Office, “Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts,” August 2005. (GAO-05-813); and Testimony to the U.S. Senate’s Committee on the Judiciary’s Subcommittee on Immigration, Border Security, and Citizenship, June 2006 (GAO-06-895T). At the time of the writing of this article, new immigration rules were expected, which will require employers in receipt of a “no-match” letter from Social Security or DHS to straighten out any discrepancy within the 90 days or terminate the employee. (A no-match letter indicates that the employee's name and social security information as provided on the W-2 form did not match the government’s computerized records, and is not necessarily an indication that the employee is ineligible to work in the U.S. A no match from DHS usually occurs after an I-9 audit and is directed to alien employees whose documents did not match DHS records.) Failure to comply with the new rule will be deemed knowing employment of an unauthorized worker in violation of law, exposing the employer to employment verification sanctions. Heightened DHS enforcement actions are also anticipated. A summary of the rules as proposed last year is available at http://www.nilc.org/immsemplymnt/SSA_Related_Info/SSAnomatch_fedregs_summary.pdf

Nonetheless, the no-match computerized protections can be circumvented if the forger also takes the precaution to match the true identity of the document holder with his or her social security or alien number beforehand, thus creating a match. In such a case, an unauthorized employee using forged documents may still escape detection.

Despite criticism and misgivings, it is likely that some form of electronic employment verification using the federal basic pilot will soon be mandatory at the very least in industries where undocumented labor is highest, either nationally or at the state and regional levels.

Such a transformation will require employer representatives who have traditionally completed I-9 forms to learn new computerized and legal skills, including properly following procedures prescribed by government agencies and counseling employees who are tentatively non-confirmed for employment. Some of the learning curve burden can be eased by computer programs that interoperate with the electronic employment verification over the Internet and provide additional valuable features to the users, such as completing and signing the form I9 electronically as part of an integrated employment verification workflow process, and providing timely automated reminders via email of compliance actions that must be taken.

Electronic Form I-9 and Signatures

DHS adopted interim rules in 2006 pursuant to a statutory grant of authority in Public Law 108-390, 11 Stat. 2242 (2004) for the preparation, signature and storage of paperless I-9’s. This feature is a powerful companion to electronic employment verification for businesses, particularly where efficiencies and cost-savings through electronic generation, signing, instantaneous online employment verification, encryption, and I-9 storage can be realized within a single Internet application.

Employee Documents

Unfortunately, a proposal also to require a single, secured federal identity document for work authorization purposes has not been given priority attention. Presently, employers are required to verify employment from among a relatively large number of possible document types to be selected, without being able legally to tell an employee the documents it prefers to see. The employer’s role is supposed to be passive. The employee decides what to provide by way of documentation, without assistance from the employer.

This puts the employers’ representatives in an awkward position. Usually employers’ representatives are not specially trained to spot forgeries. They are not even required by law to have a familiarity with the range and types of documents commonly encountered. (My law firm has posted, for use by employers’ representatives without charge, a gallery of images of commonly encountered immigration documents, which when an image is clicked, provides further useful information about it. See http://www.messinglawoffices.com/immdocs.aspx ).

The list of qualifying documents or document combinations is presented cafeteria-style on the reverse side of the form I-9, which can be shown to the employee. An employee can choose to show the employer either one from List A, or alternatively, one from each of Lists B and C. The employer checks to see that a tendered document relates to the employee and seems reasonably valid on its face, and then records the documents that the employee provided, along with the document numbers. Optionally, copies of the documents themselves can be made and saved with the form I-9. Technical understanding of immigration documents and processes is helpful, but is not required by law.

List A (Documents that establish both identity and employment eligibility)

• United States Passport
• Permanent Resident Card or Alien Registration Receipt Card (I-551)
• Temporary Resident Card (I-688)
• Employment Authorization Document (I-766, I-688B, or I-688A)
• Foreign Passport with temporary I-551 stamp
• For aliens authorized to work only for a specific employer, foreign passport with Form I-94 authorizing employment with this employer

List B (Documents that establish identity only)

• Driver's license issued by a state or outlying possession
• ID card issued by a state or outlying possession
• Native American tribal document
• Canadian driver's license or ID card with a photograph (for Canadian aliens authorized to work only for a specific employer)

List C (Documents that establish employment eligibility only)

• Social Security account number card without employment restrictions
• Native American tribal document
• Form I-94 authorizing employment with this employer (for aliens authorized to work only for a specific employer)

A moment’s reflection should yield an appreciation of the pitfalls and risks of the visual verification process by someone who lacks a thorough understanding of the permissible document combinations and how they establish compliance, when significant sanctions for mistakes can and sometimes are imposed.

Conclusion

Immigration reform is in the air and its intensity seems to be rising. Employers should begin to evaluate their present employment verification and record-keeping systems in light of probable new laws and regulations mandating electronic technology verification. This will require learning and using new human resource skills, including effective collaboration with employment eligibility verification lawyers and providers of information technology services.

John H. Messing is a lawyer and a technologist. He practices immigration law in Tucson, Arizona. He is the Chairman of LegalXML-OASIS, which is an international XML standards body for legal applications. He is a member of the governing council of the Science and Technology Law Section of the American Bar Association. He holds several patents for electronic signature technologies. For more information about him visit http://www.lawonline.biz/JohnMessing.htm

John Messing may be reached by email at [email protected]

John H. Messing, Esq.