Regulatory Compliance

Employers are required by law to verify that their employees are legally authorized to work in the United States. Many companies are not aware that if they use contract labor through a general or sub contractor then they should also be sure that the law concerning verification is complied with by the contractor.

Employers who fail to comply with the legal requirements for verification of an employee’s lawful right to work can face serious civil penalties, asset forfeiture and even criminal prosecution. Criminal prosecution can cover the spectrum of possible violations from money laudering to transporting or harboring illegal aliens. It is also important to note that under the doctrine ofrespondeat superior, a corporation can be held criminally liable for the conduct of its employees. Companies who do not ensure that their general or sub contractors on projects follow the law can also find themselves facing accusations that they knowingly hired illegal aliens. Those companies can also face civil penalties or criminal penalties depending on the facts of the case.

In 1986, Congress introduced the employment verification program as part of a trade off for the amnesty program that transformed many people who were unlawfully present into lawful permanent residents. The verification program involved the use of what is called an I-9 Employment Verification form. The form gathers personal information about the employee and also requires the employer to see documents proving identity and authorization to work. The employee is personally required to attest that they are a U.S. citizen or national, or are otherwise lawfully entitled to work in the United States. The list of documents the employer is permitted to accept are separated into three groups: (1) List A contains documents proving identity and the right to work; (2) List B contains documents proving identity, but not the right to work; and (3) List C contains documents proving the right to work, but not identity. The employer must actually see and examine one document from List A or one each from Lists B or C.

It is very important for the employer to note two crucial details about documents they examine: (1) the employer does not choose which document is presented. If the employee presents one document that proves both identity and the right to work, the employer cannot require the employee to provide a different document. Such action is considered employment discrimination and opens the employer up to liability. (2) It is permissible to keep copies of documents presented, but if the employer keeps a copy of the document for one employee then they must keep copies for all employees. To do otherwise is employment discrimination and opens the employer up to liability.

Additionally, mistakes on the form, incomplete or incorrectly completed forms can result in liability for the employer. Thus, it is very important to properly complete the form.

It is also important to note that the employer must use a currently acceptable version of the form. The I-9 form has undergone several revisions since it was first introduced. The current version of the form was issued on June 5, 2007. Prior versions of the form must not be used any longer. Prior versions have old document lists and varying information fields. Using an old and unacceptable form means the employer is not in compliance and is subject to liability. The employer can check to see which copy of the form is being used by looking at the date in the bottom right hand corner of the I-9.

Thus, a seemingly innocuous form can in reality lead to serious repercussions if it is not properly completed. With this in mind, lawyers across the country are becoming more and more involved in advising clients about the proper verification of employment authorization. CILG stands ready to defend against civil enforcement, asset forfeiture actions and criminal prosecution.