The Employer as Immigration Inspector

reprinted from New York Law Journal

April 22, 1996

As the President and Congress continue to focus national attention on "illegal aliens,"1 employers would do well to check on the documents of anyone they hire, as required since enactment of the Immigration Reform and Control Act (IRCA) in 1986.2 Then as now we were searching for a sure-fire way of plugging the holes in our Southern border, and discouraging visitors from overstaying their visas. We were told that enforcement of existing laws by the Immigration and Naturalization Service (INS) was not enough to stem the tide of immigrants who lack authority to be in the United States.

IRCA was to be the answer. IRCA made it unlawful, for the first time, to hire aliens knowing that they were unauthorized to work. And it imposed a verification drill on the hiring process designed to prevent the accidental employment of an unauthorized alien. Failure to follow either of these hiring rules was also made a violation, punishable by fines, and, in extreme cases, injunctive or criminal sanctions. As employers would not risk the penalties, the opportunity for illicit employment would be snuffed. And without a chance to work, fewer foreigners would duck under the fence, or exceed the terms of their visa.3 Or so we were assured in 1986.

Ten years later, we find that neither IRCA nor the underlying immigration rules, at least as they have been enforced, have been a match for the forces, largely economic, that impel migration to the United States. In any event, IRCA has effectively been declared a failure, as Congress is poised to enact a new round of controls directly targeting aliens.4

Meanwhile, the Justice Department has stepped up enforcement of sanctions against employers, perhaps to emphasize the need to enact stronger measures that bear directly on aliens who have no right to work or be in the United States. Attorney General Janet Reno recently announced a major increase in the INS budget for FY96, with $63 million set aside to secure worksite compliance, including a doubling of investigators to check on employer violations.5 Last month, INS came down on a contractor of landscaping services with a record $1.5 million fine.6 As these enforcement efforts continue, what employers are at risk, what must they know, and what should they do to protect themselves against fines?

Technically, any employer, individual or company, that has hired anyone since November 6, 1986, is subject to the verification requirements, and the bar to knowingly employing an alien unauthorized to work. But investigations are more likely to yield a return in unauthorized aliens when targeting employers of lower-paid service workers ' hotels, restaurants, providers of landscaping and cleaning services, and labor-intensive farms in the Southwest. The householder who knows that his domestic worker has no authorization to work is also at risk, not only for minor fines, but, in the case of a public figure, damaging publicity; take Zoe Baird. Even a company whose employees are all authorized to work may have violated the law by failing to do the eligibility checks, or doing them improperly or too zealously.

The term "employer" means any person or entity, including an agent, who engages a worker for services to be performed in the United States for remuneration.7 In the case of a contractor, the contractor is the employer, not the person or entity paying the contractor for the services. For example, a customer who engages a contractor for landscaping services is not the employer of the workers who fertilize and prune; the contractor is. The usual master-servant rules, listed in INS regulations, apply in deciding on a case-by-case basis whether someone engaged to do a job is an employee, on the one hand, or a contractor or free lancer, on the other. In no event, however, does employment include "domestic service in a private home that is sporadic, irregular, or intermittent."8

The contractor, not the customer, is bound to do the work-eligibility checks. But a customer who knows that the contractor's workers (or the free lancer) are aliens ineligible to work, is specifically deemed to violate the other prong of the law " knowingly hiring an unauthorized alien " by using a contract or subcontract to engage their services.9

The verification procedure that IRCA mandates seems simple, but is mined with problems. Its cornerstone is the Form I-9, which has three sections.

The employee must complete, sign and date section 1 of the form, attesting under the penalty of perjury to being a U.S. citizen, lawful resident, or alien who has authorization to work until a given date.10 An employee who needs help should be assisted, e.g., in reading or translation.

The employee must present original documentation establishing identity and eligibility to work. Certain documents, like a U.S. passport, naturalization certificate, or alien registration card are acceptable as evidence of both eligibility and identity. Others, like a driver's license or state photograph ID, are good for identity purposes only. To show work eligibility, the listed documents most usually presented are a social security card, other than one "not valid for employment purposes"; an original or certified copy of a birth certificate issued by a government authority in the United States; or an unexpired INS employment authorization document (EAD). Lists of acceptable documents are set out in the INS regulations11 and on the obverse side of the Form I-9.

In the appropriate column(s) provided at section 2, List A, or List B and List C, the employer notes the title of each document submitted, and the issuing authority, number, and expiration date, if any. For example, an unexpired re-entry permit satisfies the requirements of both identity and eligibility and would therefore be entered in List A. A Canadian driver's license, for example, acceptable only for identity, is entered in List B; and an INS EAD, as a work-eligibility document, would be noted in List C with the date its validity expires. The employer then certifies, to having examined the listed documents, that they appear to be genuine and relate to the employee, what date the employee started work, and that he or she is eligible for employment to the best of the employer's knowledge.

The employer has three business days from the date of hire to examine the employee's documents and to complete section 2. With certain exceptions, an employee who fails to produce the required documentation within that period must be fired. An employee who within the three days presents an application for an unavailable document, however, has 90 days to produce the document, unless the employee has already admitted a lack of work authorization.12 Other ways to provide identification are permitted to minors under the age of 18, and handicapped persons.13

The I-9 must be kept (for audit by government agencies) for three years after the hire, or at least one year after the employment ends, whichever is longer.14

An employer need not make a copy of the documentation, but may do so to confirm that it has met the verification requirement; it must then keep the copy with the I-9.15 An employer that does a good job in checking documents should follow the practice of keeping copies. They can serve to counter any false claim by employees (who may fear a charge of presenting false documents) that they were hired without showing documentation. But an employer who picks and chooses in copying documents runs the risk of being charged with discrimination on the basis of national origin or citizenship status, prohibited by another provision.16 Note that keeping copies of the documents is not a substitute for completing the I-9, including a description of the documents.17

An employer is not expected to be a document expert. If a document appears on its face to be genuine, and is one of the documents listed, it is ordinarily acceptable.18 The employer may not specify which particular document it will take, or refuse a document because of the individual's accent or appearance.19 On the other hand, an employer that has INS notification that an individual is an unauthorized alien or has other such actual or constructive notice runs the risk of a "knowing" violation.20 And although the proper completion of the I-9 procedure gives the employer an affirmative defense, a sloppy I-9 can give rise to an inference of constructive knowledge.21

If an employee's work authorization is due to expire, the employer has to reverify its validity. By the expiration date, the employee must present a document that either shows an extension, a new grant of work authorization or continuing employment eligibility, the details of which are entered on the Form I-9 at section 3.22

Allowing the worker to continue without reverification leaves the employer worse off than if it hadn't done the I-9 paperwork to begin with. Not only does the employer violate the verification requirements, but builds a case against itself of continuing to employ someone knowing that he or she is apparently an alien unauthorized to work. An employer may invite that charge too, in some cases, by assisting an employee to obtain a labor certification or visa preference.23

An inconsistency in documents might well suggest that one or another is false. For example, on reverification when an INS work-authorization document is expiring, an employer might well question the presentation of a U.S. birth certificate. What if the employee initially presents an alien registration card ("green card") as evidence of identity and work eligibility, but later asks the employer for an employment letter to assist in completing the process of gaining lawful residence? The employer then knows or should strongly suspect that the document earlier presented was a forgery. What should the employer do? If satisfied that the employee now has a valid INS employment authorization document, it may want to use that EAD to reverify the employee's eligibility at section 3 of the I-9. On the other hand, the employer could not be faulted in firing the employee for presenting false documentation the first time.

If the document presented to show employment eligibility is not time-limited, no reverification is needed. Moreover, an employee who is reasonably expected to return is not deemed to have left employment when on strike, or temporary leave or layoff, and no verification is required when the employee goes back to the workbench.24 The same is true of a seasonal worker, or an employee suspended or terminated for disciplinary reasons, who is later reinstated. Nor are transfers between one distinct unit of an employer to another considered hiring events; the I-9s are simply sent to the receiving unit. Whether work with a related successor, or reorganized employer, is continued employment or requires a new I-9, depends on whether it meets the complex criteria in the INS regulations.

Only touched on here, and warranting extended treatment, is the subject of immigration-related practices that discriminate against employees on the basis or national origin or citizenship status.25 The employer should also be concerned with IRCA's penalties and enforcement procedures.

But the best insurance against fines is meticulous compliance. In the present enforcement climate, an employer does well to review its I-9 procedures from time to time, and to undergo a rigorous self-audit.

Notes:

1 . On March 21, 1996, after "one of the most contentious debates that we will have this year," see 73 Interpreter Releases 349 (Mar. 25, 1996) (quoting an unnamed member of Congress), the House approved the "Immigration in the National Interest Act of 1996 (H.R. 2202), a bill containing the most severe penalties for entry and status violations in our immigration history, and radically cutting back on procedural rights. For analysis of these provisions, see issue of Interpreter Releases, id., and earlier issues there cited. For criticism of these provisions by Anthony Lewis in the N.Y. Times, see Mean and Petty, Apr. 12, 1996, at A31; Stand Up For Liberty, Apr. 15, 1996, at A15. For general criticism of such legislation, see Guyle E. Cavin, Crime and Punishment: Enforcement, Penalties, and the Immigration and Nationality Act, 73 Interpreter Releases 253 (Mar. 4, 1996). Also on March 21, a companion bill, S. 269, was voted out of the Senate Judiciary Committee and set down for debate on the Senate floor the week of April 15, 1996. On efforts to couple with this enforcement legislation provisions that would limit legal immigration, see 73 Interpreter Releases 349 (Mar. 25, 1996), 313 (Mar. 18), 289 (Mar. 11); editorial, Simpson's Swan Song, The Wall St. J., Apr. 15, 1996, at A18. The President is considered likely to sign the resulting enforcement legislation, unless it is amended to include an agricultural-worker program or to permit state limitations on the education of illegal alien children. See Eric Schmitt, Administration Draws Line as Senate Considers Immigration, N.Y. Times, Apr. 16, 1996, at A18. By executive order, the President has directed that federal contracts be denied to companies that knowingly hire unauthorized aliens. See Executive Order 12989, 61 Fed. Reg. 6091 (Feb. 15, 1996), discussed and reproduced at 73 Interpreter Releases 225, 242 (Feb. 26, 1996).

2 . Pub. L. No. 99-603, 100 Stat. 3372. The main provisions of that act granted a one-time opportunity for amnesty (legalization) to certain classes of aliens in the United States in violation of law, and imposed sanctions on employers who fail to follow certain hiring procedures (I-9 requirements), limiting employment to workers with documentation of their U.S. citizenship, lawful residence, or INS work authorization, or who hire individuals knowing they are aliens unauthorized to work. The sanctions provisions are codified at section 274A of the Immigration and Nationality Act, as amended (INA), 8 U.S.C. [[section]] 1324a. See also 8 C.F.R. Part 274a. The statute and regulations also impose a sanctions regime on those who recruit or refer employees for a fee.

3 . H.R. Rep. No. 682, Pt. I, 99th Cong., 2d Sess. 46 (1986) ("Employment is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status."), reprinted at 1986 U.S.C.C.A.N. 5649, 5650.

4 . See supra note 1.

5 . DOJ news release, Feb. 8, 1996, reported in 1 Bender's Immigration Bulletin No. 4, at 12 (Mar. 1996).

6 . See Celia W. Dugger, Federal Agency Fines Company A Record $1.5 Million for Hiring Illegal Immigrants, N.Y. Times (Metro), Mar. 22, 1996, at B6.

7 . See 8 C.F.R. [[section]] 274a.1(g), (h), (j).

8 . Id. at (h).

9 . INA [[section]] 274A(a)(4), 8 U.S.C. [[section]] 1324a(a)(4); 8 C.F.R. [[section]] 274a.5.

10 . 8 C.F.R. [[section]] 274a.2(b)(1).

11 . 8 C.F.R. [[section]] 274a.2(b)(1)(v).

12 . See 8 C.F.R. [[section]] 274a.2(b)(1)(v)(B)(1)(ii), (iii) (also providing that if the employment is for less than three business days, the employer may not take the application in lieu of the document, nor delay in completing the I-9).

13 . See id. at (1)(B)(2), (3), (4).

14 . 8 C.F.R. [[section]] 274a.2(b)(2).

15 . Id. at (b)(3). The statement here that the I-9 retention requirements do not apply to the documents is confusing. How long then must a document be kept?

16 . INA [[section]] 274B, 8 C.F.R. [[section]] 1324b.

17 . 8 C.F.R. [[section]] 274a.2(b)(3).

18 . Collins Foods International v. INS, 879 F.2d 561, 567 (9th Cir. 1989) (rejecting INS position that employer had constructive notice because he failed to compare social security card with one in INS Employer Handbook).

19 . 8 C.F.R. [[section]] 274a.1(l)(2).

20 . 8 C.F.R. [[section]] 274a.1(l)(1). See generally 1 C. Gordon, S. Mailman & S. Yale-Loehr, Immigration Law and Procedure (ILP) [[section]] 7.03[3] (rev. 1996).

21 . Compare INA [[section]] 274A(a)(3, 8 U.S.C. [[section]] 1324a(a)(3) with 8 C.F.R. [[section]] 274a.1(l)(1). See also ILP, supra note 20, at [[section]] 7.03[4].

22 . 8 C.F.R. [[section]] 274a.2(b)(1)(vii).

23 . See 8 C.F.R. [[section]] 274a.1(l)(ii).

24 . 8 C.F.R. [[section]]274a.2(b)(1)(viii).

25 . INA [[section]] 274B, 8 C.F.R. [[section]] 1324b.