News
Law Practice
Aug. 8, 2002
Tiptoe Around Immigration Document Traps
Dicta Column - By Beth A. Schroeder and Maria C. Rodriguez - We all know that firms can be penalized for hiring undocumented workers. But do you know you can be penalized for requesting more or different documents than the minimum required or for rejecting immigration-related documents that might be false but look genuine or for requesting specific I-9 immigration documents? Violations of this nature are referred to as "document abuse."
Focus Column
By Beth A. Schroeder and Maria C. Rodriguez
We all know that firms can be penalized for hiring undocumented workers. But do you know you can be penalized for requesting more or different documents than the minimum required or for rejecting immigration-related documents that might be false but look genuine or for requesting specific I-9 immigration documents? Violations of this nature are referred to as "document abuse." A firm can be penalized up to $1,100 per violation and ordered to pay back pay and to reinstate the employee. A firm also may be required to pay the employee's attorney fees in some cases and, in particularly egregious situations, could face criminal penalties.
Under the Immigration Reform and Control Act and the Immigration Naturalization Act, firms must take precautions not to hire or continue to employ unauthorized aliens. Yet firms may not overscrutinize immigration-related documents or refuse to hire or fire someone because of his or her national origin or citizenship status. Balancing these two competing interests can seem like a tightrope act.
To make matters worse, the Department of Justice has been pursuing document abuse cases more fervently than in the past. Quite often, however, the targeted employer simply has made an honest mistake. Recently, a client conducted a self-audit of its I-9 forms and documentation. This company found, as many would, that some of its employees' work authorizations had expired. Accordingly, it requested that each of those employees provide current authorization. One employee, after months had passed, provided a passport and a Social Security card that read "Not Valid Without Valid INS Authorization." Following the card's direction and the advice of a Social Security agent, the employer asked the employee to provide INS authorization or clear up the Social Security card restriction. After four months, the employee had not provided the documentation. Based on the good-faith belief that this employee was restricted from working, the employer let her go.
The employee filed a claim with the Department of Justice, which argued that this company committed document abuse. The basis of the argument was that the employee did provide a passport, an I-9 list A document which satisfied the I-9 requirement. According to the government's reasoning, once the employer received a "list A" document, it did not need to look at the Social Security card. This logic also dictates that the restriction indicated on the Social Security card should not cause the employer to call into question the validity of the passport.
Firms need to understand how to walk this immigration tightrope. The following are a few guidelines to remember when dealing with this issue:
• The employee can choose which documents to provide from the I-9 list. The employer can accept either a document from list A of the I-9 form or a document from both list B and C.
• The employer should never accept more than this minimum. If an employee provides a document from all three lists on the I-9, return them to the employee, and ask him or her to choose whether he or she wants to provide a document from list A or a document from both list B and C. Copy only those minimum documents required.
• Attach the copies to the employee's I-9 form, and retain the documents in a general employee I-9 file which contains all employees' I-9 documentation. Don't keep them in the employee's personnel file.
• Do not target a particular employee for increased scrutiny unless a document does not appear to be valid.
• If the documents look reasonably valid on their face, accept them. An employer is not required to be an expert in document authentication. Indeed, overscrutinization may result in penalties.
• Firms should stay apprised of changes in the law with respect to I-9 and general immigration issues, especially how these laws may be modified because of homeland security.
These guidelines are by no means an exhaustive set of precautionary measures. If your firm is faced with an ambiguous I-9 situation, call the Department of Justice's employer information hot line at (800) 255-8155.
Beth A. Schroeder is a partner in the employment and labor law department of Silver & Freedman in Los Angeles. Maria C. Rodriguez is an associate in the same department.
By Beth A. Schroeder and Maria C. Rodriguez
We all know that firms can be penalized for hiring undocumented workers. But do you know you can be penalized for requesting more or different documents than the minimum required or for rejecting immigration-related documents that might be false but look genuine or for requesting specific I-9 immigration documents? Violations of this nature are referred to as "document abuse." A firm can be penalized up to $1,100 per violation and ordered to pay back pay and to reinstate the employee. A firm also may be required to pay the employee's attorney fees in some cases and, in particularly egregious situations, could face criminal penalties.
Under the Immigration Reform and Control Act and the Immigration Naturalization Act, firms must take precautions not to hire or continue to employ unauthorized aliens. Yet firms may not overscrutinize immigration-related documents or refuse to hire or fire someone because of his or her national origin or citizenship status. Balancing these two competing interests can seem like a tightrope act.
To make matters worse, the Department of Justice has been pursuing document abuse cases more fervently than in the past. Quite often, however, the targeted employer simply has made an honest mistake. Recently, a client conducted a self-audit of its I-9 forms and documentation. This company found, as many would, that some of its employees' work authorizations had expired. Accordingly, it requested that each of those employees provide current authorization. One employee, after months had passed, provided a passport and a Social Security card that read "Not Valid Without Valid INS Authorization." Following the card's direction and the advice of a Social Security agent, the employer asked the employee to provide INS authorization or clear up the Social Security card restriction. After four months, the employee had not provided the documentation. Based on the good-faith belief that this employee was restricted from working, the employer let her go.
The employee filed a claim with the Department of Justice, which argued that this company committed document abuse. The basis of the argument was that the employee did provide a passport, an I-9 list A document which satisfied the I-9 requirement. According to the government's reasoning, once the employer received a "list A" document, it did not need to look at the Social Security card. This logic also dictates that the restriction indicated on the Social Security card should not cause the employer to call into question the validity of the passport.
Firms need to understand how to walk this immigration tightrope. The following are a few guidelines to remember when dealing with this issue:
• The employee can choose which documents to provide from the I-9 list. The employer can accept either a document from list A of the I-9 form or a document from both list B and C.
• The employer should never accept more than this minimum. If an employee provides a document from all three lists on the I-9, return them to the employee, and ask him or her to choose whether he or she wants to provide a document from list A or a document from both list B and C. Copy only those minimum documents required.
• Attach the copies to the employee's I-9 form, and retain the documents in a general employee I-9 file which contains all employees' I-9 documentation. Don't keep them in the employee's personnel file.
• Do not target a particular employee for increased scrutiny unless a document does not appear to be valid.
• If the documents look reasonably valid on their face, accept them. An employer is not required to be an expert in document authentication. Indeed, overscrutinization may result in penalties.
• Firms should stay apprised of changes in the law with respect to I-9 and general immigration issues, especially how these laws may be modified because of homeland security.
These guidelines are by no means an exhaustive set of precautionary measures. If your firm is faced with an ambiguous I-9 situation, call the Department of Justice's employer information hot line at (800) 255-8155.
Beth A. Schroeder is a partner in the employment and labor law department of Silver & Freedman in Los Angeles. Maria C. Rodriguez is an associate in the same department.
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