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Form I-9 Changes Become Effective February 2, 2009
Key changes to the Form I-9 and the types of documents an employer may accept to verify an employee's identity and employment authorization become effective February 2, 2009. The changes are designed to further reduce the hiring of unauthorized workers in the United States.
Amended Form I-9
Section 1 of the Form I-9 has featured 3 boxes relating to the employee's citizenship and immigration status. The first box, "A Citizen or National of the United States," is split into two boxes, creating a total of four boxes, in the amended Section 1. This requires the employee to check whether he is one of the following: U.S. citizen, U.S. national, U.S. permanent resident, or alien otherwise authorized to work. The purpose of splitting U.S. citizens and U.S. nationals into two groups is to "eliminate one difficulty that currently exists when prosecuting those who make false claims to U.S. citizenship."
U.S nationals include a limited group: persons born in American Samoa; certain former citizens of the former Trust Territory of the Pacific Islands who relinquished their U.S. citizenship (relating to political changes in the Commonwealth of the Northern Mariana Islands); and certain children of noncitizen nationals born abroad.
Section 1 also replaces the text "An alien authorized to work until --/--/-- (Alien or Admission number ----------------'' with the text "An alien authorized to work (A or Admission ------ ------ ) until (expiration date, if applicable--month/day/year) --/--/--."
Expired Documents No Longer Acceptable
Employers may not accept expired documents, such as an expired U.S. passport or expired identity card, for any purpose from new hires. When an identity document or document of non-expiring status (such as passport to show citizenship or I-551 to show permanent residence) expires after the hire date, the employer is not required to re-verify the I-9. Expirations of documents that show temporary employment authorization (such as Form I-766), however, do require re-verification.
Other Changes for Acceptable Documents
USCIS has added some documents to and removed other documents from the List A and List C documents of employment authorization. For example, employers may no longer accept expired passports but may now accept passport cards from new hires as evidence of U.S. citizenship.
Employers must not begin using the amended Form I-9 or the new rules until the changes becomes effective on February 2. |
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Worksite Enforcement Affects The Bottom Line
The U.S. government's initiative to curb the employment of unauthorized workers is now aimed mostly on worksite raids and investigations. Educating employers and ensuring their compliance with administrative methods have taken a back seat to prosecution and sanctions. Under this policy, hefty fines and criminal arrests of company managers are the main enforcement tools for the U.S. Immigration & Customs Enforcement (ICE).
While the prospect of jail time can scare even the hardened criminal, the possibility of high civil fines and other financial penalties can cripple corporations, especially in this down economy. Worksite enforcement raids and investigations, particularly when they result in heavy fines and criminal charges against company personnel, generally disrupt business operations, reduce employee productivity, harm the corporate reputation, and ultimately affect the bottom line.
In the case of Agriprocessors Inc. of Postville, Iowa case, the fine against one manager who was charged with aiding and abetting document fraud, aiding and abetting aggravated identity theft, and conspiring to harbor illegal aliens was $750,000. This hefty civil fine was coupled with mandatory jail time of two years and possible jail time of up to 22 years.
Recently, IFCO Systems North America, headquartered in Houston, Texas, entered into a record $20.7 million settlement of claims to avoid further corporate criminal charges against certain IFCO employees for hiring illegal aliens. The settlement against IFCO, which is the largest pallet management services company in the United States, includes $2.6 million in back pay and penalties for overtime violations with respect to 1,700 of its workers. IFCO also agreed to pay $18.1 million in civil forfeitures to support future law enforcement activity. In addition, IFCO must use the Department of Homeland Security's E-Verify program to screen all hires and will also verify the social security numbers of all current IFCO employees through the Social Security Administration. IFCO will also provide a "hotline" for employees to report suspected violations of law by the company.
The settlement agreement concerns only the liability of the corporation and does not address other criminal charges against corporate officers and employees who, in addition to serving jail time, may pay monetary fines. The settlement followed ICE's April 19, 2006 raid at over 40 of IFCO's plants in 26 states. ICE acted on a tip in February 2005 that alleged undocumented workers at an IFCO plant were observed ripping up their W-2 forms.
Payment of civil forfeitures, back taxes, legal fees and costs, as well as disruption in operations and productivity, all cause significant financial losses for companies. While monetary settlements and fines can harm large corporations like IFCO, they do even further damage to small and medium-sized companies that might be forced to close or scale back their business. Because worksite enforcement has numerous effects on the bottom line, corporations should work to ensure that their hiring process complies with federal immigration laws.
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In 2007, the U.S. Department of Homeland Security established an initiative called the ICE Mutual Agreement between Government and Employers (IMAGE) as a way for employers to reduce the unlawful employment of undocumented workers and avoid employer sanctions. The IMAGE program aims to train and educate employers on proper hiring procedures, fraudulent document detection, use of the E-Verify employment eligibility verification program and anti-discrimination procedures.
Employers seeking to join the IMAGE program must agree to:
1. Complete a self-assessment questionnaire;
2. Enroll in E-Verify;
3. Enroll in the Social Security Number Verification Service;
4. Adhere to IMAGE Best Employment Practices;
5. Undergo an I-9 audit conducted by ICE; and
6. Review and sign an official IMAGE partnership agreement with ICE.
In light of these requirements, employers should consult an immigration attorney before joining the program.
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