Do your clients have a written I-9 policy? They should

Issue December 2010 By Marisa A. Defranco

The lack of an I-9 policy could subject your clients to large fines, even if the errors are technical and inadvertent. In fact, technical errors often make up the bulk of fines levied by the Department of Labor (DOL) or Immigration and Customs Enforcement (ICE). When dealing with federal regulations, a policy of prevention could save your clients the pain of an expensive fine. Attorneys who represent employers and businesses should consult with an immigration practitioner to ensure proper I-9 compliance.

Proper form

On April 3, 2009, a new I-9 form, version 2/2/09, became effective. The next most recent version was published on Aug. 7, 2009. These two versions are now the only valid versions of the form. The new form specifically restricts use of any documents that are expired. The previous iteration of the form changed the list of acceptable documents in List A, removing some previously acceptable documents and adding changes to the acceptability of the I-94 card. In addition, the previous form changed the requirement of a Social Security number, and an employer must make sure not to run afoul of this significant change.

Mandated use of E-Verify by federal contractors

By presidential executive order, on June 9, 2008, if a company has any contracts with the federal government, it must participate in an electronic system in order to verify that an employee is eligible to work in the U.S. The secretary of the Department Homeland Security has selected E-Verify as the preferred system. DHS administers the E-Verify system, which is an online system through which member employers can verify the work authorization status of new employees.

Implementing a formal, written I-9 policy

With the current climate of DOL and ICE investigations, no employer should be without a written I-9 policy.

  • Key issues that an employer (your client) should consider are:
  • Are you complying with the proper retention rules?
  • Do you know when you must and when you cannot re-verify an I-9?
  • Do you know whether or not you should make copies of the employee's identity documents?
  • Is your policy effective while avoiding prohibited discrimination?
  • What is constructive knowledge, and do you have it?
  • Do you perform a yearly internal audit?
  • Should you participate in the E-Verify system?
  • Will you have a good faith affirmative defense?

Civil penalties

If an employer fails to fulfill its I-9 obligations, the penalties can be harsh. If the federal government finds that an employer is liable for unlawful hiring, for the first offense, penalties range from $375 to $3,200 per unauthorized employee. For a third offense, or more, the penalties can increase to a whopping $16,000 per unauthorized employee.

Besides unlawful hiring, ICE can assess penalties against an employer for violating verification and recordkeeping requirements. Paperwork penalties are assessed when employers have incorrect or missing I-9 forms for their employees, and range from $110 to $1,100 per I-9.

Although criminal penalties do not apply to violations that are purely paperwork in nature, an employer should also keep in mind that it can be charged with criminal penalties for "pattern or practice" violations.

Criminal penalties

Employing workers who are unauthorized for employment may also subject the employer to criminal penalties.
Constructive knowledge prior to Sept. 14, 2007, includes but is not limited to: (1) failing to complete or improperly completing I-9; (2) having information that indicates that alien is not authorized to work, for example, alien has asked the employer to sponsor her for a labor certification; (3) acting with reckless and wanton disregard, for example, allowing contractor to place unauthorized aliens in its work force.

Constructive knowledge after Sept. 14, 2007 - DHS had promulgated new "no-match" rules that would have required employers to take certain steps in order to obtain "safe harbor," but on Oct. 7, 2009, DHS withdrew its no-match rules, leaving in place a standard of a totality of circumstances.

Receipt of a no-match letter from SSA does not, by itself, create constructive knowledge, but the letter and the employer's actions after receipt of such letter will be two factors that DHS will use when ascertaining whether an employer has constructive knowledge that an employee did not have proper authorization to work.

If knowledge or constructive knowledge is found:

  • When the federal authority investigating the employer determines that the employer has engaged in a pattern and practice of employing unauthorized workers, the federal agent can fine the employer $3,000 for each unauthorized worker, and put the employer in prison for six months, or both.
  • More serious charges are felonies, harboring and money laundering, and the government has increasingly been filing these kinds of charges against employers.
  • Harboring: maximum penalty is five years for each alien, or in some cases, 10 years if private financial gain or commercial advantage (e.g. unfair competition) is found to be an element of the crime.
  • Money_laundering: 10 to 20 years for each offense, depending on the statute under which a person is convicted.

Attorneys should ensure that their client companies implement proactive measures and compliance policies in order to avoid these serious consequences.

Marisa DeFranco has more than 14 years of experience specializing in immigration and nationality law. She was a recipient of a national award for her pro bono work, the National Legal Aid & Defenders Association's Beacon of Justice award, in October 2010. In her practice in Salem, DeFranco serves all the immigration needs of both her business and family based clients, including business visas, green cards and I-9 audits for corporate clients, marriage and relative petitions for families, and Mandamus actions in federal court and deportation proceedings for individuals. She is the chair of the MBA Immigration Law Section Council and previously served as the New England Chapter chair of the American Immigration Lawyers Association (AILA) and on the National Liaison Committee for the Vermont Service Center. In 2008, DeFranco was appointed a commissioner on the Massachusetts Commission on the Status of Women.