‘I’m from the government, and I’m here to help you’

June 27, 2008

What you need to know about recent changes to the I-9 form

If you are one of the many managers responsible for administering the I-9 Employment Verification System in your workplace, then you know, like we all know, that the system is terribly broken. The evidence is clear: in 1986 the I-9 System was instituted to prevent the hiring of illegal workers. In 1986, there were an estimated 2 million illegal workers in the United States. Today, in 2008, there are an estimated 12 million illegal workers in America. In a nutshell – the I-9 System has allowed an estimated 10 million extra illegal workers into the United States workforce. No surprise! The I-9 System is a dysfunctional as you always have suspected it to be.

So, what went wrong?

There is an intrinsic Catch-22 in the I-9 System. On the one hand, realistic looking fake green cards are apparently easy to obtain, and to compound this problem, Box 2 of Section 1 of the Form I-9 does not require the employer to re-verify green cards once they have been examined during the initial I-9 review. On the other hand, as an employer, you can’t discriminate during the hiring process, and under the I-9 rules, you are not expected to be a “document expert,” meaning that if a green card looks reasonably authentic, then you must accept it for I-9 purposes. 

Catch-22: you have been appointed as the “last line of defense” in U.S. “workforce protection.” But if you are presented with a fake green card that looks reasonably authentic, you must accept it as real, and are never required to re-verify it. If you do anything else, you may be accused of unlawful discrimination (based on national origin or citizenship) in the hiring process. It is as if the federal government has given you – in defense of the U.S. workforce – a gun that is pointed straight back at you. If you pull the trigger and question a green card, you may very well shoot yourself in the face. Congratulations – you are stuck with a job you never asked for; your job tasks are doomed to failure; and if something goes wrong, the federal government may try to blame you for hiring illegal workers! Have a nice day.

Is there a solution?

Comprehensive Immigration Reform (CIR) at the federal level of government would be a good place to start to fix this problem. CIR would entail strengthening the U.S. border while also (1) making more white collar visas available, (2) making the student visa holder obtain a more direct path to future employment, (3) offering undocumented workers inside the USA a path to citizenship and (4) creating a “guest worker program” that would allow 400,000 workers into the USA each year, for a limited time with no path to citizenship, to simply work, earn U.S. dollars, and return home. Many countries in the Middle East and in Asia have such guest worker programs and have enjoyed successful results. Although the current administration has been talking about CIR since the early days of this decade, Congress has been unwilling to act. As a result of this federal inaction, our nation is now faced with a patchwork nightmare of inconsistent state and local immigration regulations that are either burdensome, unconstitutional, or just plain unrealistic.

So, what is the federal government doing to fix this mess? The short answer: They opted for a short term “fix,” but, if you ask me, this “fix” is just another source of headache for you. The longer answer: The federal government has ducked taking full responsibility for solving this problem each and every time since 2000 that they have failed to enact Comprehensive Immigration Reform.

The short term “fix” really has three components: (1) increasing worksite raids by the officers from Immigration and Customs Enforcement (“ICE”); (2) making minor changes to the Form I-9 System ( including a “new” I-9 Form and a “new” Employer Handbook explaining the I-9 process); and (3) creating a voluntary E-Verify Program. Let’s look at each one of these three items (I’m getting a headache already).

Increasing ICE raids at worksites

As you read this, please keep in mind that you are most likely “not in trouble” so long as you make a good faith effort (try your best) to correctly complete the Form I-9 with new hires; do not “knowingly employ” illegal workers and do not knowingly have the illegal workers of subcontractors on site; and avoid situations where you “constructively knew” or “should have known” that illegals were employed by your company or that subcontracted illegals were on your worksite.

The big question many managers worry about is “Will anybody go to jail because of I-9 violations?” Here are the three basic answers: (1) if the government audits your I-9 documents and finds deficiencies in the record keeping or in the completion of the Form I-9, your company (not you) may be subject to civil monetary penalties (good news – no jail time for you); (2) if there is a worksite raid, and workers are found to be undocumented, or if they are found to have provided you with fake identification, then the illegal workers are subject to arrest and deportation; and (3) the only way an HR manager is going to face criminal charges is if the manager is found to be involved in one of four broad activities: (1) involved in a conspiracy to hire and/or harbor illegal workers; (2) involved in a pattern and practice of systematic disregard of I-9 Procedures (called “bad faith” compliance); (3) involved in a pattern and practice of “knowingly” hiring or continuing to employ illegal workers or “knowingly” having illegal subcontractors on site; and (4) involved in a situation where the manager has “constructive knowledge” of illegals on the company payroll or of illegal subcontractors on site.

Minor changes to the I-9 System

The Department of Homeland Security recently issued a “new Form I-9” to be used for all new hires after Dec. 26, 2007. DHS also issued a new Employer Handbook to explain the I-9 process. This development is all sizzle and no steak. Why? Because the federal government merely updated the I-9 Form, which for years listed flat-out wrong documents as “acceptable.” Further, the federal government merely updated the former, hopelessly outdated employer handbook, which for years depicted “acceptable” documents that either no longer existed in the format shown, or were not acceptable documents in the first place! Finally, the I-9 forms have added references to the new voluntary “E-Verify Program.”

What is the E-Verify Program?

E-Verify is a joint program administered by the DHS and the Social Security Administration. It is advertised as a quick, post-hire method for the verification of an employee’s Social Security Number, to determine if it is genuine. On the plus side, use of the E-Verify program may (may!) insulate an employer from charges of “bad faith compliance” and help an employer avoid charges of “constructive knowledge” that may form the basis of criminal charges. On the negative side, to enroll in the program, the employer must sign an agreement that allows both DHS and SSA to make periodic visits to the employer’s place of business for the purpose of auditing I-9 Records and interviewing the employer and the employees as the government sees fit.

So, you decide: Deal or No Deal? Are there better ways to show “good faith compliance” and avoid “constructive knowledge” charges that do not involve the E-Verify program?  The answer is “yes.”

Establishing your policy

Ideally, you should consider establishing a company policy that encompasses the following:

• Provides for centralized control and management over the I-9 Process.

• Separates the I-9 Forms from the personnel files.

• Complies with the I-9 regulations in a logical, consistent and non-discriminatory way (don’t worry, even if you are unknowingly doing something minor in an incorrect manner, the key is to keep doing it consistently wrong in a logical way as applied to all employees – from the janitor to the CEO – regardless of race, creed, color, sex, citizenship or national origin.)

• Establishes guidelines to follow upon receipt of SSA “No-Match Letters”

• Provides for Internal I-9 Audits.

• Provides for Regular I-9 Training for I-9 Managers and Administrators.

• Avoids over documentation.

• Should you check the I-9 records of a subcontractor? Never.

• Should you establish an I-9 Flow Down Clause for subcontractors? Yes, if you are being asked to sign such a clause from the owner or the general contractor.

• Should you check on-line the SSNs of your new hires with the SSNVS Program? This is not required, but it is better than E-Verify. If you choose to do this, do it in a logical, consistent and non-discriminatory manner.

• Should you jump into the E-Verify Program? No, Thanks.

• Establishes the use of I-9 Flow Down Clauses for subcontractors that requires the subcontractor to certify:

• That it has complied with all I-9 requirements.

• That it has not knowingly employed any illegal aliens.

• That it will indemnify you for any sanctions imposed for immigration violations.

So, what should I do next?

If I were your attorney, I would recommend that you take two aspirin, review your company’s I-9 policies, and vote in the November elections for the candidates at the federal, state and local levels who truly seek Comprehensive Immigration Reform.

The I-9 System and ICE raids are simply horrible symptoms of America’s badly broken immigration rules and regulations. The time is now. Vote!

Arthur Seratelli is chair of the Immigration Law Group at Vandeventer Black LLP.

Written by Arthur Serratelli  |  Filed Under Immigration 

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