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I-9 E-Verify Immigration Compliance

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  1. When does an Employer have Knowledge of Unlawful Immigration Status

    By: Bruce Buchanan, Sebelist Buchanan Law


    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379), Greg Siskind and I discuss Knowledge of Unlawful Immigration Status. Here are excerpts from Chapter 6 from the book.

    6.1 What if an employer knows an employee is not authorized to be employed even though the Form I-9 was properly completed?

    An employer that knows the employee is not authorized to work, even though everything on the Form I-9 appears valid—is violating the Immigration Reform and Control Act (IRCA) because the employer is considered to have actual knowledge that an employee is not employment eligible. An employer that simply suspects an employee is ineligible to work should be extremely careful before terminating an employee, or even asking for additional documentation, unless the employer has a solid foundation for the belief. Taking an action after merely hearing from an-other employee that a particular employee is unauthorized to be in the United States is a recipe for a discrimination lawsuit because IRCA does not require employers to make inquiries under these circumstances. On the other hand, if an employee actually provides information to the employer regarding his or her immigration status, the employer would be considered to have knowledge. If the employer continues to employ this individual, it is a serious violation.

    6.2 When would an employer be considered to have “constructive knowledge”?

    The U.S. Department of Homeland Security (DHS) regulations hold employers liable not only when they have actual knowledge that an employee is unauthorized to work, but also when knowledge may be inferred through notice of certain facts that would “lead a person, through the exercise of reasonable care, to know about a certain condition.” Code of Federal Regulations, Title 8, section 274a.1(e). This is called “constructive knowledge,” and DHS lists several examples in its rules:

     The employer fails to complete or improperly completes the Form I-9.

     The employer has information that would indicate the alien is not authorized to work, such as a labor certification (this would generally apply only when an employee already was claiming to be a U.S. citizen or permanent resident on the Form I-9).

     The employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an un-authorized employee into its workforce.

    This list is not exhaustive, and employers also need to be cognizant of the anti-discrimination rules. In addition, failing to re-verify a Form I-9 requiring reverification usually will be considered constructive knowledge.

    A clearer situation is found when an employer receives a Notice of Suspect Documents (NSD) from ICE that an employee has submitted fraudulent documentation. The courts generally have held that such a notification would provide an employer with constructive knowledge of a problem and that the employer would need to re-verify.

    6.3 What if an employee later presents a different Social Security number from when the Form I-9 was completed?

    Because a person is assigned only one Social Security number (SSN) in his or her lifetime, an employee who comes to an employer with a number different from the one at the time of hire should be viewed with suspicion. The odds are that the employee used a false number to begin work and has somehow been able to obtain a valid SSN later (such as through a green-card application filed independently of the employer).

    The same principle normally applies with an “A” or “Alien number.” An employee should have only one “Alien number.” The number does not change upon renewal of Permanent Resident card or moving from Employment Authorization card to Permanent Resident card. The authors know of only two occasions where an employee legitimately had two “Alien numbers” and that was when the employee failed to disclose the number to ICE or USCIS before starting a new process. Having two different “Alien numbers” is a strong indication of unlawful status or previous unlawful status.

    Employers will, of course, want to speak to employment counsel involving a violation of an employer’s policies regarding making false statements during the hiring process. With respect to IRCA, the employer should inquire regarding the circumstances surrounding obtaining the new number. However, the employer is not required to terminate the employee even if the employee admits making a false statement; and the employer would be able to continue employing the employee if the employer had no knowledge of the employee’s lack of work authorization. In this case, a new Form I-9 should be completed with the old Form I-9 attached with an explanation. The employer should correct the number with the IRS, so taxes are properly withheld.

    However, if the employer has an honesty policy that states one can be terminated for lying on a company document and that policy has been followed, the employee must be terminated.

    6.7 What if an employer receives a DHS notice that there is a problem with a document presented in connection with a Form I-9?

    DHS’s requires an employer to take specific steps in a prescribed timeframe when it receives notification from DHS that a document presented by an alien for employment verification purposes is invalid, or fraudulent, or cannot be authenticated. The main uncertainty surrounds how quickly an employer would need to respond and to what extent.

    An employer that receives this type of notice (known as a Notice of Suspect Documents, or NSD) would not violate the anti-discrimination rules of IRCA if it requests that an employee provide additional documentation. The courts have held that ICE need not pro-vide irrefutable proof that the employee is ineligible to work. It is enough that ICE provides information that arouses suspicion. As for timing, an employer must act within 10 days of ICE’s notice, although it is debatable as to what action the employee must take within 10 days. It may be that the employer must notify the suspect employee, or it may be that the employer must discharge the employee if he or she does not provide any new work authorization or ICE has rejected the new documents. Certainly, it must be reasonable under the circumstances.

    Another type of notice from ICE is called a Notice of Discrepancies. It advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
    When an employer follows up with an employee, the question also arises regarding what action must be taken. Clearly, the employer must provide the new documentation to ICE, which will determine the new documentation’s validity. What if the employee provides new, valid documentation that does not include the suspect document? In this case, the employer would have a defense against a later charge of knowingly employing an unauthorized employee.

    6.8 What if an employee tells the employer that another employee is unauthorized?

    The employer should not consider a mere tip from another employee to constitute knowledge that an employee is out of status. An employer acting on such a tip alone could be vulnerable to being found to have violated anti-discrimination laws.

    According to a ICE/ Office of Special Counsel (OSC) December 2015 guidance, “tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. An employer is cautioned against responding to tips that have no indicia of reliability, such as unsubstantiated, retaliatory, or anonymous tips. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employee based on unreliable tips may be unlawful, particularly if the tip was made based on retaliation, the employee’s national origin, or perceived citizenship status.”

    On the other hand, an April 12, 1999, opinion letter from legacy Immigration and Naturalization Service (INS) general counsel noted that if an employer receives a tip from another employee indicating that an employee is not authorized to be employed, and the employer later receives a Social Security no-match letter, the employer would likely have constructive knowledge based on a “totality of the circumstances.”

    6.9 Is an employer liable if it uses a contractor and knows the contractor’s employees are not authorized to work?

    Yes. DHS regulations state that any person who uses a contract, subcontract, or exchange to obtain the labor or services of a foreign employee in the United States, knowing that the employee is unauthorized to work, should be considered to have hired the employee for purposes of determining if a person has violated IRCA.

    6.10 May an employer be deemed to have constructive knowledge when it failed to complete a Form I-9 for an employee or when the form is completed improperly?

    Yes. In various cases, employers have been held to have had constructive knowledge that an employee was unauthorized to work even if the employer had no direct knowledge of the employee’s employment status. Courts have held that employers are not excused simply because there is a Form I-9, if the form itself was not properly completed. A court would look to the circumstances surrounding the particular form and use a standard of what is reasonable to determine if an employer should have known that an employee was likely not authorized.

    6.11 May an employer be deemed to have constructive knowledge when it fails to re-verify a Form I-9?

    Yes. Courts have found that an employer that fails to re-verify a Form I-9 when such re-verification is required will usually have constructive knowledge that an employee is unauthorized to work. The more complicated question is what to do when the employee presents documentation that does not relate to the expired document presented at the time of hire. ICE and the courts have held that an employer has an obligation to make an inquiry regarding the continuing employment authorization. This would seem to violate the anti-discrimination rules in IRCA that bar employers from specifying which documents an employee may submit. However, Congress addressed this issue in Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which punishes employers for making inquiries regarding continuing work authorization only when such inquiries are made for the purpose or with the intent of discriminating against an individual.
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