One reason for this is the Immigration Reform and Control Act of 1986, which was amended a few years later. This law for the first time, required employers to verify the identity and right to work in the United States of all employees hired after November 6, 1986.

The I-9 process involves several steps. First the employee must complete part I of the I-9 form. Second, the employee must provide the employer evidence of their identity and work authorization from a list of pre-approved documents. (click here for a list of acceptable documents). The employer must review the material completed in Part I of the Form, verify that the documents appear to be genuine and relate to the individual, and must complete Part II of the Form. Employers should establish uniform practices to adopt these processes. If the employer asks for more documentation than that required by law may be charged with "over documentation."

At the time the law was first passed, many employers complained that Congress was making employers "Junior Immigration Inspectors" and in some respects this was certainly true. Employers, even those who do not employ foreign nationals on temporary visas have had to become savvy about the range of immigration documents which may be presented, when they may be requested, as well as the manner of asking for such evidence. Employers have also had to learn how to complete, verify, record, and store these documents on the government required form called the I-9.

Unfortunately, although this law has been around for more than a decade, it is common for employers to commit errors in completing this form. Failure to properly complete or to properly maintain this form may expose your company to substantial civil penalties, and where there are repeat offenses, even criminal penalties. Fines, which range from $100 to $10,000 are per violation and can quickly accumulate since they can be imposed for each violation for each form that was not properly completed. In the past, fines have exceeded $250,000 where companies had actually completed and properly stored the form, but had some paperwork mistakes. In addition to problems improperly completing the form, employers can be fined if they knowingly employ an alien not authorized to work in the United States.

In addition to penalties for deliberately hiring someone known to not have authorization to work , employers may also be fined for "constructive knowledge." Constructive knowledge is present when someone within the company or organization knows, should have known, or should have fairly inferred through notice of certain facts and circumstances when exercising reasonable care, that a particular employee does not have the right to work in the United States. There are three situations in which such constructive knowledge may be found to exist:

• Failing to complete or improperly completing the I-9 Form;
• Having information that the alien is not authorized to work, such as from labor certification or other immigration forms; and
• Acting with "reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into the workforce.

For example, if a College or University International Office hires a student employee holding F-1 or J-1 status, and that student fails to register full time thereby failing to maintain status, the institution may be at risk of a violation under IRCA because of their institutional knowledge that the student employee was not authorized to work.

Not only can companies be fined for paperwork mistakes such as not properly recording information, accepting documents which are not appropriate evidence or are expired, and the like, but they can also be fined for mistakes relating to how they implement the I-9 process resulting in discriminatory practices against people who look, act, look, or speak differently. Although there is no specific regulation which says that an employer cannot ask employees to complete the I-9 during the interview process, there is a risk when the process involves completing the form at that point. Specifically, employers may be charged with an "unfair labor practice." If an employer does request that the I-9 form be completed during the recruitment process, it must be asked of all applicants, not just those who look, act, or sound foreign.

Employers may be fined under the anti-discrimination provisions of IRCA. The law established certain classes of individuals who are "protected," under IRCA. These include U.S. citizens and permanent residents, "intending citizens" including refugees, asylees, parolees, and individuals who successfully applied for legalization.

On the other hand, certain employers, such as subcontractors, may not have to complete the I-9 firm with your company, however, such exclusions may depend on language used in such independent contractor agreements.

Employers often ask how they can balance between knowing whether or not a prospective employee may need a visa to work in the United States and asking questions which may be considered to be discriminatory under the law. You can insure that you do not discriminate under the law by routinely asking the following question: "Are you an American citizen, permanent resident alien, lawful temporary resident alien, applicant for temporary resident status, refugee or asylee?"  This should be asked as one entire question. The recruiter or employer should be asking for a yes or no answer. If the person answers yes, the individual is a member of the protected class. With a yes answer, the employer cannot ask into which of these category the individual falls, only if the individual falls into one of these categories. Asking a specific question, for example If the individual is a citizen or permanent resident, could form the basis for a possible discrimination charge by a rejected applicant. Such a question is allowed only if the employer has a legitimate citizens only hiring policy requiring one. If the job applicant answers yes to this initial question, you should then make the hiring decision strictly on the basis of whether the applicant is qualified in terms of background, credentials, and performance, and other appropriate measures. Only when the hiring decision is made, and the position is accepted, should the employee be asked to complete the I-9 form. If the employee answers no to the question, s/he is not a member of the protected class. You can then ask if the individual is work authorized, and if so under what provision of the law or with what kind of visa status.

This is an example of a procedure which can become routine and help to protect your company from charges under IRCA.

The best defense against charges of improperly completing the I-9, over documentation, or discrimination are to insure that a uniform practice is involved in the implementation of the I-9 process. This includes uniform training, documentation and copying practices, periodic reviews and audits, and insuring that all written material as well as oral instructions comply with the law.

Bassett and Associates can help you minimize your risk by reviewing your policies, processes, and practices, and by conducting a private audit of your I-9 records. We can also provide appropriate and on-going training to your front line personnel, as well as to your managers. This proactive step can help you make the necessary paperwork and process changes, thereby avoiding costly fines. The discovered errors in your I-9's can be corrected, expired documents can be rechecked and updated, and improper documents eliminated. Additionally, improper methods of when, how, and what is requested of prospective and current employees can be modified to prevent charges of discrimination.

If you would like training, an I-9 review or audit, or assistance in defending against unfair employment or other charges relating to the implementation of IRCA, please contact our office.

In the meantime, if you would like some helpful advice on this process, please click here.  

Follow this link for a List of documents acceptable for completion of the I-9 process

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