Maryland Bar Bulletin
Publications : Bar Bulletin : February 2008

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 Bar Bulletin Focus

Immigration Law    

One of the hottest topics today is immigration. While many discuss the issue of illegal immigration, not many focus on what employers are expected to do to avoid violating immigration controls. Employers who treat these rules casually risk a great deal. Federal authorities are making sustained and determined efforts to pursue civil and criminal penalties against employers with unauthorized workers. In some cases, the authorities have secured criminal charges personally against company managers, supervisors and owners. The risk is significant, and it is growing. This article reviews the basic rules requiring verification of an employee’s work authorization and highlights the vital importance of an employer’s creating a process calculated to ensure adherence to the rules.

The Rules – Form I-9 –
Complete It Properly and
Maintain the Records

All U.S. employers are required to complete a U.S. Citizenship and Immigration Services (CIS) Form I-9, Employment Eligibility Verification Form, for all employees, whether they are U.S. citizens, lawful permanent residents or others who are hired to work in the United States after November 6, 1986. The CIS recently issued a new version of the I-9 form, which, along with the lists of acceptable documents, is available at www.uscis.gov and must be used as of December 26, 2007, for all new hires and for all re-verification of employment authorization.

Properly completing the I-9 form is much more than an administrative task. It is a very important legal act that must be done at the proper time and in the proper way. Otherwise, criminal or civil penalties can be imposed on the company and, in some cases, personally on the individuals acting on behalf of the employer.

If the employment is to last less than three days, the entire form must be completed before the employment commences. If the employment is expected to last for more than three days, the employee must complete Section 1 at the time of hire (at or before the time he or she commences work). The employee should be given the lists of acceptable documents and allowed three business days from the date of hire to bring the original documents on the list showing eligibility to work. The employer representative must review the original documents presented by the employee. If the document(s) reasonably appear to be genuine and to relate to the person presenting them, the employer then completes the balance of the form. The documents produced should be copied and attached to the completed form.

If the employee presents documents that are not on the list or do not meet the standard, the employee must be directed back to the list of acceptable documents and told to select and present something else from the lists, i.e., one document from List A or one document each from List B and List C. The employer must not tell the employee which specific document to present; that decision is up to the employee. If the three business days have elapsed at that point, the employee must not be allowed to work until he or she has presented the required original documents.

The completed form and attached copies should then be retained in a place separate from the employee’s personnel file and a tickler should be set up for any required re-verifications, i.e., for employees who produce an employment authorization document that expires. (Re-verification does not apply to all documents that expire, e.g., U.S. passports, permanent residence cards, drivers’ licenses, etc.)

The completed forms must be retained for the longer of the following periods: three years after the date of hire or one year after the employment is terminated. These records can be stored as they are or, subject to certain restrictions, on microfilm, microfiche or electronically. It is very important for employers to ensure that their I-9 records are in order, easily accessible and meet the requirements for documentation and retention. More information about the I-9 process and the retention rules can be found in the most recent USCIS Handbook for Employers, M-274, which can be found on the CIS website at www.uscis.gov. The website also has information about the CIS E-Verify program, an electronic employment eligibility verification system.

Enforcement - Potential
Criminal and Civil Penalties

Failure to comply with the I-9 rules can result in civil and/or criminal penalties. Federal authorities can conduct an audit of an employer’s I-9 forms on three days’ notice. Waiting until an audit notice is received to address the I-9 process is not prudent. It is critical that employers act now to develop corporate compliance policies, train responsible employees in the rules, conduct internal audits on a periodic basis and provide re-training on a periodic basis.

Willful ignorance as to employee’s fraudulent documentation or failure to follow the I-9 rules may rise to the level of a pattern or practice of knowingly hiring or employing unauthorized aliens; this can result in criminal fines and penalties both against the company and the individuals who effectuate the practices. The immigration enforcement agency, Immigration and Customs Enforcement (ICE), may chose to obtain a warrant to raid a workplace if surveillance, confidential informants, “no-match” records from Social Security or an official I-9 audit indicate the presence of unauthorized workers. In many cases, ICE is pursuing varied and serious additional criminal charges against employers and personally against their managers or supervisors if significant numbers of unauthorized employees are found. For example, companies that provide vehicles to employees to enable them to move from one jobsite to another can be charged with “transporting” or “harboring” illegal aliens. Significant fines and jail sentences have been imposed.

Employers who feel they may have some exposure should take immediate steps to correct any flawed I-9 practices and to make certain that their representatives and employees know their rights and responsibilities in the face of a raid. Waiting to act until after the authorities have acted is far too late.

Frances O’Connell Taylor practices immigration law with the firm Taylor & Ryan, LLC.

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Publications : Bar Bulletin: February 2008

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