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     No business ever thinks it will be audited.  That is, until it actually is.  There is plenty of reason to dread a business audit, and now, the Department of Homeland Security has given just about every business one more reason to dread it.   

     In July of 2009, Immigration and Customs Enforcement (ICE), at the direction of the Department of Homeland Security, began randomly auditing businesses for compliance with the Form I-9 Employment Eligibility Verification.  § 274A of the Immigration & Naturalization Act prevents any domestic business from employing or otherwise retaining employees who are not authorized to work in the United States.  

     Almost immediately after the audits began, ICE issued massive criminal and civil fines to businesses deemed to be in violation of the law.  In one case, the fines totaled approximately $150,000.  And each violation gets separately charged and fined.  

     The Immigration & Naturalization Act § 274A requires all employers located in the United States of America to hire and/or employ only individuals legally authorized to work in the USA.  The Form I-9 (Employment Eligibility Verification) must be completed at the time of the hiring (when the employee begins working).  The documents the employee must present in compliance with the Form I-9, which the employer must accept, are located on a “menu” on the back of the form.  However, there are pitfalls for the unwary employer.

     On July 7, 2009, less than a week after beginning the audits, ICE audited Krispy Kreme Doughnut Corporation in Ohio.  The result was a $40,000 fine.  “Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance,” said Brian Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. “ICE will use the legal tools at its disposal to address those who neglect or falter in their corporate responsibilities.”

     Another company’s audit resulted in no criminal charges against the employer and no workers arrested.  However, ICE issued a fine of approximately $150,000 and ordered the company to re-verify the work authorization of approximately 1,800 of their seemingly undocumented workers.  The company was issued a mandate to terminate the employment of all workers who could not document their work authorization.

     The INA § 274A, specifically Form I-9, places the burden upon the employers, not the employees, to:

     1.  Verify the identification and employment authorization of each person hired;
     2.  Retain the Form I-9 and copies of the supporting documents; and
     3.  Refrain from discriminatory practices. 

Verification of the Identity & Work Authorization 

     The INA § 274A requires the employers to ask the employee to provide proof that said employee is authorized to work in the United States.  To accomplish this, the employee must present any of the documents listed in Column A on the back of the Form I-9, or any document from Column B and Column C. 

Receipts Vs. Documents 

     In certain circumstances the employee will not be able to produce any of the documents listed in Columns A – C, but will be able to produce a ‘Receipt’.  If the employee can’t produce any of the required documents within 3 business days, a ‘Receipt’ MUST be accepted in lieu of the actual documents. 

     For example, a ‘Receipt’ may have been issued to the employee for a lost or stolen Permanent Residence (Green) Card.  If the employee presents the ‘Receipt’ instead of the actual Green Card, the employer MUST accept it for 90 days or until the end of the ‘Receipt’ expiration date.  The employer’s failure to accept the ‘Receipt’ may be considered discriminatory. 

     On the other hand, a ‘Receipt’ which merely indicates that the employee has “applied” for work authorization is insufficient, and if the employer accepts it, ICE considers the employer to be in violation of INA § 274A.  A violation subjects the employer to both criminal and/or civil penalties. 

Retention of Form I-9 and Supporting Documents 

     Employers are required to retain the Form I-9 and supporting documents for three (3) years after the date of hire or one (1) year after the termination of the employment, whichever is later.  These documents must also be made available to inspection by ICE with three (3) business day’s notice.  However, the employer must take steps to ensure that only authorized personnel have access to personnel records. 

     The employer is not required to retain copies of the supporting documents provided by the employee, but if the employer elects to do so, it must do so for ALL employees, not on a case by case basis.  Doing so on a case by case basis is fertile ground for a complaint of discrimination. 

Discriminatory Practices 

     The employer must be very careful to avoid discriminatory practices.  It is a skill that requires a careful balancing act of complying with the mandates of verifying the authority of the individual to work in the USA, without infringing on the right of said individuals to be considered for employment on an equal footing with everyone else.

     There are 4 types of discrimination to be avoided:

     1.  Citizenship:  The employer cannot discriminate against an individual based on that individual’s citizenship; 

     2.  National Origin:  The employer cannot discriminate against an individual based on that individual’s nationality; 

     3.  Retaliation:  The employer cannot retaliate against an employee who has made a complaint of discrimination by the employer simply because the employee made said complaint; and  

     4.  Document Abuse:  The employee must present an original document.  A photocopy is not compliant.  Any employer who accepts the photocopy is violating the Act and is subject to civil and/or criminal penalties.  Document abuse discrimination also prevents the employer from requiring more documentary proof of work authorization than required by the Form I-9.  It also prevents an employer from requiring a particular document from List A – C.  The law gives the employee to the right to select from the menu.  The employer does not have that option.  The law also punishes an employer who rejects a document that appears genuine.  Lastly, it is considered document abuse to treat different groups differently. 

Take Action! 

     Nothing happens without action.  First, have your company’s written policies and procedures audited to ensure that they comply with the I-9 mandates.  Then, have your company’s actual hiring process audited to ensure that the hiring process actually follows the written policies and procedures.