Arent Fox Alert: Have You Hired Unauthorized Workers? Changes to I-9 Employment Verification

The following memorandum is not intended to be a comprehensive summary of all of the provisions of concerning employment eligibility verification, but rather focuses on recent changes in the law that are likely to affect U.S. companies. Questions concerning the application of the employment verification provisions or a particular situation should be addressed to the individuals at the numbers listed at the end of the article.


The Immigration Reform and Control Act of 1986 ("IRCA") was enacted in part to deter employers from hiring individuals unauthorized to work in the United States. IRCA placed the difficult burden on the employer to verify the employment eligibility of every employee hired after November 6, 1986 and provided for civil and criminal penalties for employers who do not comply. See also, Immigration and Nationality Act of 1990 ("INA") ' 274A(a). In order to comply with IRCA, employers must ensure that an Immigration and Naturalization Service ("INS") Form I-9, Employment Eligibility Verification, is completed for each employee. The form mandates employers to verify an employee's work authorization by requiring the employee to present any of a number of documents that establish identity and authorization to work in the United States. The acceptable documents are listed on the reverse side of the I-9 form. An employer may not request more documents than required by the form or specific documents from the list, (e.g., if an employee presents a U.S. passport, the employer cannot request a driver's license and social security card), nor can an employer refuse to accept appropriate documents that on their face appear to be genuine, as these practices are considered to be unlawful discrimination. INA ' 274B(a)(6)- made it a violation for an employer to request "more or different documents" than are required to satisfy IRCA's employer sanctions provisions. The Justice Department's Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC") investigates allegations of discrimination and has the authority to file an immigration-related discrimination complaint with an Administrative Law Judge ("ALJ"). An employer is required to retain completed I-9s for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later.


The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), signed on September 30, 1996, included changes to the employment verification provisions. Pub. L. No. 104-208. While IIRIRA contains provisions enhancing employer sanctions, it also attempts to make employer compliance an easier task. ' 411 of IIRIRA adding INA ' 274A(b)(6). IIRIRA amended the Immigration and Nationality Act of 1990 ("INA") to state that an employer is considered to have complied with ' 274A(b), employment verification requirements, in spite of a "technical or procedural failure" provided that the employer made a good faith attempt to comply. The INS has defined, for purposes of the good faith defense, what it regards as a technical error as distinguished from a substantive error, which is not covered by good faith, 63 Fed. Reg. 66,16909, 66,16913 (1998) (8 C.F.R. pt. 274a). If the government finds a violation and explains it to the employer, the employer should be allowed at least ten (10) business days to take corrective action. However, if the employer does not correct the violations in a timely manner, penalties may be imposed. This "good faith compliance" provision applies only to violations occurring on or after September 30, 1996. The good faith provision does not apply to pattern or practice violators. INA ' 274A(c).

Another provision in IIRIRA reduces the number of documents that are acceptable for work verification, thereby making it easier for employers to comply with verification requirements. IIRIRA ' 412. The INS is currently developing a document reduction initiative to implement the comprehensive changes made by IIRIRA to the verification process. A rule designating documents acceptable for the employment eligibility verification process was published on September 30, 1997. 62 Fed. Reg. 5100. This rule was an attempt to comply with the effective date provision for ' 412(a) of IIRIRA. However, on October 6, 1997, President Clinton signed legislation (Pub. L. 105-54) extending the deadline from 12 months to 18 months.) This rule is currently in effect and it eliminates four documents from "List A", documents establishing both identity and eligibility to work. The documents removed are as follows: Certificate of United States citizenship (INS Form N-560 or N-561); Certificate of Naturalization (INS Form N-550 or N-570); Reentry Permit (INS Form I-327); and the Refugee Travel Document (INS Form I-571). The INS has prosecutorial discretion and will withhold enforcement of civil penalties associated with the changes made by the rule until a new Form I-9 is issued.

No changes have been made to the items in List B or C. A proposed rule further shortening the list of documents acceptable for the employment eligibility verification process, including a revised Form I-9, was published on February 2, 1998. 62 Fed. Reg. 21,5287, 21,5314. However, until this new Form I-9 is finalized, employers should continue to use the existing Form I-9 (11/21/91 version).

I-9 Penalties

Compliance with I-9 requirements can be time consuming and expensive. However, the cost of noncompliance can be far greater with potential civil monetary penalties for paperwork violations alone ranging from $100 to $1,000 per violation. INA ' 274A(e), 8 U.S.C. 1324a(e), revised May 1, 1997. Employers can be cited for multiple paperwork violations contained on a single I-9 form. Rather than waiting for an investigation to discover that the I-9s are not in order, an employer can conduct periodic private I-9 audits. The benefits of a private audit far outweigh the costs. For example, in the case of an I-9 inspection by INS, an employer has three (3) days to produce its I-9 documents upon request by the government. INS, Dept. of Labor and Office of Special Counsel can inspect I-9s. They must provide at least three days notice prior to inspection. 8 CFR ' 274. This short notice forces the employer to devote its staff and expend precious time in compiling the documents and ensuring that they are in order in a brief period of time. Even under the good faith compliance section, an employer may be expected to correct its I-9 forms within ten (10) business days. Depending upon the number of employees involved, this could be a long and arduous task. A private audit by an experienced immigration practitioner can uncover problem areas which can be corrected before they result in sanctions. The practitioner can also provide training regarding the proper manner in which to complete the I-9 form to avoid any future violations. By conducting private I-9 audits, an employer can ensure proper compliance with the employment verification requirements to be prepared in the event of an I-9 inspection.

The attorneys in the Arent Fox Immigration Group have broad experience in assisting employers in the maintenance of proper documentation for compliance with the employment verification process. The attorneys have also defended employers against actions taken by the INS and the Office of Special Counsel and advised clients on such issues as the retention of foreign national employees and the employer sanctions and anti-discrimination provisions of the immigration law. In addition, the Immigration Group attorneys formulate strategies for the transfer of personnel into and out of the United States for international businesses; advise with regard to the immigration aspects of U.S. investment; and obtain individual immigration benefits, including nonimmigrant visas, permanent residence and U.S. citizenship.