An employer is cautioned against obtaining new Forms I-9 from its existing employees (absent acquisition or merger) without regard to whether a particular Form I-9 is deficient or without reason to believe that systematic deficiencies in the employer’s employment eligibility verification process call the integrity of all previously completed Forms I-9 into question. Without sufficient justification, requiring an existing employee to complete a new Form I-9 may raise discrimination concerns. Where new Forms I-9 are completed for existing employees, however, they should be stapled to the original Forms I-9, and not backdated. Finally, the same discrimination, retaliation and intimidation concerns implicated by conducting internal audits also apply to obtaining new Forms I-9 from existing employees.
The employer sanctions provision of the INA makes it unlawful for a person or other entity, after hiring an alien for employment, to continue to employ the alien knowing that the alien is, or has become, unauthorized for employment. By regulation, “knowing” includes not only actual knowledge, but also knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status.
The employer should provide all employees who claim they are work-authorized with a reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy. The 90-day period set forth in U.S. Department of Homeland Security Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (Aug. 15, 2007) was rescinded, so the 90-days is not a legally binding regulatory requirement. An employer should recognize that some documents may take up to or more than 120 days to obtain. The reasonableness of a timeframe should be determined on a case-by-case basis.
Factors to consider include, for example, the specific nature of the deficiency and the time 5 required for alternative Form I-9 documentation to be obtained under the circumstances. In addition, all employees who are asked to present alternative documentation should be given the choice of acceptable documents to present (they do not have to use the same document used previously) and should not be treated differently based on perceived or actual citizenship status or national origin. Some employees may not have the same document(s) in their possession that they originally presented for the Form I-9, either because they have misplaced the document(s), their immigration status has changed, the document has since expired, or for other reasons.
If an employee is unable to present acceptable documentation, an employer should consider the reasons for an employee’s inability to do so and determine whether an extended period of time would be appropriate based on the particular circumstances on a case by-case basis. An employer should be sure to allow or disallow additional time based on objective non discriminatory and non-retaliatory criteria and without regard to an individual employee’s citizenship status or national origin. The employer should document the basis for its decision and continue to document the efforts of the employee to obtain acceptable Form I-9 documentation.
In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s) and is currently employment-authorized, the employment eligibility verification provisions do not require termination of employment. An employer may continue to employ the employee upon completion of a new Form I-9 noting the authorizing document(s), and should attach the new Form I-9 to the previously completed Form I-9 together with a signed and dated explanation.
An employer violates the employer sanctions provision of the INA if it continues to employ an employee with actual or constructive knowledge that the employee is unauthorized to work. While 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 upon retaliation, the employee’s national origin or perceived citizenship status.
