New Law Changes Employment Veritifcation (I-9) & Citizenship Status Discrimination Rules

The new legislation discussed elsewhere in this newsletter also contains some changes to the employment verification process. Under the new law, if an employer makes a good faith effort to comply with the I-9 verification requirements, that employer cannot be fined for merely technical or procedural errors in completing the I-9 form, unless the Immigration & Naturalization Service(INS) or another enforcement agency has first explained the error and given the employer 10 business days to correct it. This provision took effect immediately, but only with respect to errors made after September 30, 1996.

Some question exists as to what will be considered "technical or procedural" errors. At least one INS office has indicated that it would not regard some of the more common paperwork errors, such as failing to date the employer's signature or failing to ensure that the employee affirms his current immigration status, as technical or procedural. Thus, the new provision may not immediately prove to be the "fix" to INS overreaching in paperwork fines that it was intended to be.

The new law also severely reduces the number of documents acceptable to prove work authorization and identity for Form I-9 completion purposes. This provision will take effect only after the INS issues new regulations, which are not expected until much later in 1997. Since many of the changes are subject to interpretation by INS, the true impact of the law remains to be seen. The law also mandates a pilot program that would enable employers to contact a centralized telephone number or computer site to verify the validity of work authorization. This program will be voluntary, unless the employer has been required to participate by an order relating to a citizenship status discrimination or knowing employment of an undocumented worker violation.

With respect to the citizen status discrimination provisions, existing law considers it to be an act of discrimination if an employer requests more or different documents for I-9 completion than those presented by the employee, if the documents are on the list of acceptable documents, appear on their faces to be valid and appear to relate to the employee. The new law requires a complainant to show that the request for more or different documents was made with an intent to discriminate.