6/5/2006 - The subject of proposed reform of the immigration control regulations is one of the highest profile issues for management during these days. The last reform of these regulations occurred in 1986 and it is certain that some kind of major change is forthcoming very soon. The question is, of course, how will this change affect employers? While predicting what Congress might do is always an iffy proposition, it seems virtually certain that new regulations will place a good deal of new enforcement responsibility on employers. For example, we are expecting a provision that will require a significantly more detailed and comprehensive background check of potential new hires, possibly involving the Social Security database.

Under current regulations, employers are required to complete the I-9 form and then simply examine the applicantís verification documents and make a determination as to whether the documents (a) are present and (b) look authentic. This must be done within 3 days of employment. If, later, the documents turn out to be non-authentic, there is no penalty for the employer, in most cases, as it is the responsibility of the worker to present authentic documents. This may change under the proposed reforms so as to shift this responsibility to the employer. Employers may be required to more closely examine the documents, conduct certain background checks, and make a specific, determinative decision certifying whether the documents are valid.

In addition, it seems pretty clear that the financial penalties for hiring undocumented workers will be much more severe. Under current regulations, the penalty for employing an undocumented alien may reach up to $10,000 per individual. Observers and commentators now believe that new proposals will increase this number and, under some circumstances, may include incarceration for employers who violate the rules. Whatever the final results, American employers will have a good deal more responsibility, recordkeeping and administration, with respect to immigration control. Other elements of immigration reform include border security, an amnesty program and a guest worker program. While these are critically important, and are certainly work-related at a certain level, they will have less of an impact on employers, particularly with respect to recordkeeping and administration. Itís our opinion that the element of immigration reform that will have the greatest impact on employers likely will be increased responsibility for verifying and authenticating an applicantís right to work in this country, along with significantly increased penalties for non-compliance.

Until the new regulations are in place, employers are required to comply with the existing requirements, which are as follows:

1. Complete the I-9 Form within 3 days of employment. Pay particular attention to completing the 3 columns in the middle of the page Ė A, B or C. Even though you have copies of the verification documents, you should still fully complete the I-9 Form. Employees who do not provide the verification documents within 3 days of employment are regarded as undocumented, unauthorized workers, with one or two very narrow exceptions.

2. Examine the verification documents for authenticity (that is, verification of identify and verification of right to work in this country). You should exercise due diligence in determining that the documents are present and appear authentic.

3. Attach copies of the supporting verification documents to the I-9 form. The copies are your support that you properly examined the verification documents.

4. Maintain these documents in a separate file, apart from the official personnel file. I-9 Forms and supporting documents should not be included in the official personnel file, for a host of reasons.

A Note of Caution: While the responsibility for presenting authentic documents falls on the applicant/employee, the employer must be able to demonstrate that the documents were examined in good faith. Those persons who would violate the immigration restrictions in order to obtain a job in this country have a number of scams at their disposal, some of them quite creative. For example, a Social Security card that begins with the number 8 or 9 is not authentic and a metal Social Security card, a copy of a Social Security card or an illegible Social Security card is not acceptable. Also, we have recently seen where an identification document allegedly issued by the Mexican government is inauthentic.

Seay Managementís Human Resources Management Compliance visit includes a review of your I-9 Files to make sure that you are up to date and in compliance with the regulations. Please call our firm if you have any question about this important and developing management responsibility. We will appreciate your call and look forward to talking with you.

Back to Index