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I-9 E-Verify Immigration Compliance


  1. DREAMers – Potential Problems in I-9 Compliance

    As we finish applauding or booing (depending on our political views) President Obama's decision to grant deferred action to DREAMers, we need to think about potential I-9 compliance issues which may arise with so many individuals receiving work authorization documents or cards (EADs).
    One potential issue is where a current employee receives an EAD but previously he provided fraudulent documentation, such as a fraudulent permanent resident card, EAD, or Social Security card, to you, the employer.  That employee then presents a new and valid EAD to the HR manager and confides the prior documentation was fraudulent. What should an employer do in this situation? Much depends on your company's policy on presenting fraudulent documents or lying on a company or government document. There are several options.
    The first is to accept the new EAD, have a new I-9 form filled out and attach the old I-9 form to the new one with an explanation of the circumstances of completing the new I-9 form. If your company has a policy or practice of copying the underlying documentation, or is required to under state law, the new EAD should be copied. This option should only be utilized if your company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document.
    A second option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee is going to be terminated. However, if the company does not have a policy prohibiting their re-hire, the company may offer to re-hire the employee and fill out a new I-9 form with an explanation of the circumstances.
      The third option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company or government document and that employee is not eligible for rehire. Thus, the employee must be terminated without a chance of rehire. This action is particularly harsh but may be the only way for an employer to go if it wants to remain consistent with its policy.
    The option that a company chooses will be dictated by your company's policy and practice. Don't have a policy concerning employment of employees who have presented fraudulent documents or lied on a company document?  It may be time to start thinking about getting one. Consult with a qualified immigration compliance or employment attorney to develop an I-9 policy that addresses all the current legislation and best practices.
    Always be consistent in your practices, especially when it comes to documentation. If you do a good deed by retaining a DREAMer after he has provided a valid EAD and admitted previously providing a fraudulent document, then, to be consistent, you may have to retain an employee who lied on his application about a felony conviction. Again, consistency is important.
  2. DREAMers and I-9 Compliance

    What impact will President Obama's decision to grant deferred status to so-called DREAMers have on employers?  Since the DREAMers will be receiving employment authorization documents (EADs), employers will see more employees providing EADs for their I-9 documentation.
    For some employers, the EAD may be a document that they rarely see.  The four largest groups who receive an EAD are individuals on TPS, with OPT status, asylees (for first year of asylum), and individuals who have pending adjustment of status cases.  Thus, it is important to remember several things about an EAD.
    First, it is a List A document, if it has a photograph on it. Thus, one should not ask for a driver's license or Social Security card to accompany the EAD card.  Second, in Section 1, the employee must list their A number and expiration date of the EAD next to the box for "Alien authorized to work."  Third, EADs expire within two years of the issuance.  Thus, employers should have a tickler system to remind employees, at least 90 days before an EAD's expiration, of their need to renew their work authorization or provide other documentation concerning their work authorization. (Remember, employees who received EADs during their adjustment of status process will likely have a permanent resident card and can provide that or a driver's license and social security card or other appropriate documentation.)
    Hopefully, these reminders will assist you in your I-9 compliance as you see an uptick in EADs presented for I-9 purposes.
  3. Where is E-Verify headed in State Legislatures?

    States and local governments have been passing E-Verify legislation requiring all employers or employers contracting with state and/or local government to use E-Verify.  The question which this post and further posts will discuss is whether state and local governments will continue to pass E-Verify legislation or has the trend slowed down.
    Earlier this year, the Kansas Legislature failed to agree on passage of mandatory E-Verify legislation. This appears to be an affront to Kansas Secretary of State Kris Kobach, who has been a proponent and/or author of much state immigration legislation throughout the U.S.
    In Tennessee, it was widely believed the legislature would likely amend the non-mandatory E-Verify bill, which was passed in 2011, which stated private employers can either signup for E-Verify and receive protection under state law or copy and maintain one of the specified identification documents. The amendment would require E-Verify use to be mandatory. However, the Tea Party forces in the legislature could not overcome Republican Governor Bill Haslam and Republican House Speaker Beth Harwell's opposition, which was based upon the need to keep the legislative session focused on the economy, not on social issues. Thus, there was never even a vote to amend the E-Verify law. 
    In the last few years, the following states have required employers within their state to utilize E-Verify for newly-hired employees: Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina and Utah.   These states require employers who contract with state and/or local government to utilize E-Verify: Colorado, Florida, Idaho, Indiana, Louisiana, Minnesota, Missouri, Nebraska and Oklahoma.  Two states, Louisiana and Tennessee, have "non-mandatory" E-Verify requirements.  On the other hand, California prohibits local governments from requiring the use of E-Verify.
    Which way will other states go? In at least 15 states, E-Verify legislation has been introduced in their state legislatures. But, will it die like it did in Kansas and Tennessee or will it pass, like Alabama and Georgia. Time will tell and I'll get you informed on these developments.
  4. DOJ Files Lawsuit against Casino for Employment-related Immigration Practices

    On May 31, 2012, the Department of Justice filed a lawsuit against Tuscany Hotel and Casino LLC in Las Vegas alleging the company engaged in a pattern or practice of discrimination in the employment eligibility verification and re-verification process.
    The Complaint alleges Tuscany, for over five years, utilized a practice of recording the expiration dates of all non-U.S. citizen employees' work authorization documents in its payroll system. It did not record such expiration dates for documents of citizens. Furthermore, non-U.S. citizens, who presented a List B and a List C document during the initial employment eligibility verification process, were required by Tuscany to provide the expiration date of their permanent resident (LPR) card as a condition of employment.

    Thereafter, it is alleged Tuscany subjected lawful permanent residents to unnecessary reverification by requiring them to provide a renewed permanent resident card to continue employment. Under the Immigration and Nationality Act (INA), employers may not request reverification of permanent resident cards even if they expire after their employment begins. Furthermore, the INA requires employers to treat all authorized workers equally during the hiring, firing and employment eligibility verification process, regardless of their national origin or citizenship status.

    Requesting reverification of expired permanent resident cards is a common mistake of employers since it is counter-intuitive that an expired LPR card does not mean the employee's employment eligibility has expired. That's one reason that employers need the wise counsel of immigration compliance attorneys - to guide employers through the maze of immigration compliance regulations, some of which are counter-intuitive.
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