Specifically, the DOJ alleged that Fleetlogix required these non-US citizens to provide specific and unnecessary work and identity documentations because of their citizenship, nationality and/or immigration status as required by the Immigration Reform and Control Act of 1986 (IRCA) by way of completion of a Form I-9, Employment Eligibility Verification. The DOJ’s investigation found that Fleetlogix required specific documentation, such as I-94s (Arrival/Departure Records), Employment Authorization Documents (work permits) and/or Permanent Resident Cards (green cards), even though the individuals had already presented other valid and legally sufficient documents to prove both their identity and work authorization including drivers’ licenses and unrestricted Social Security cards.
Form I-9 requirements come out of the IRCA. IRCA prohibits employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment. Employers also are prohibited from continuing to employ an individual knowing that he or she is unauthorized for employment. This law also prohibits employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.
The Immigration and Nationality Act (INA)’s anti-discrimination provision prohibits employers from requesting more or different documents than necessary to prove work authorization and identity. Congress by way of the INA, determined that all work-authorized individuals could choose which valid, legally acceptable documents to present to prove their work authorization and identity on the Form I-9. The INA does not permit employers to request specific or additional documentation if the documents presented are genuine looking documents.
Under the terms of the settlement agreement, Fleetlogix will pay fines/civil penalties of $627,000, create a back pay fund for individuals who lost their jobs due to the discrimination, train employees responsible for the completion of the Form I-9 on the requirements of the INA’s anti-discrimination provisions and change their internal I-9 policies and procedures.
Lawsuits against the USCIS do work and spur change. As a result of a class action lawsuit filed by AILA member Rob Cohen, which challenged the post-approval delays in EAD issuance, USCIS will now allow people to show the I-797 approval notice as proof of authorization to work:
See this update on I-9 Central
The USCIS stated:
Due to the extraordinary and unprecedented COVID-19 public health emergency, the production of certain Employment Authorization Documents (Form I-766, EAD) is delayed. As a result, employees may use Form I-797, Notice of Action, with a Notice date on or after December 1, 2019 through and including August 20, 2020 informing an applicant of approval of an Application for Employment Authorization (Form I-765) as a Form I-9, Employment Eligibility Verification, List C #7 document that establishes employment authorization issued by the Department of Homeland Security pursuant to 8 C.F.R. 274a.2(b)(1)(v)(C)(7), even though the Notice states it is not evidence of employment authorization. Employees may present their Form I-797 Notice of Action showing approval of their I-765 application as a list C document for Form I-9 compliance until December 1, 2020.
On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form.
The major changes are to the form’s instructions, which include:
1. Clarified who can act as an authorized representative on behalf of an employer
2. Updated USCIS website addresses
3. Provided clarifications on acceptable documents for Form I-9
4. Updated the process for requesting paper Forms I-9
5. Updated the DHS Privacy Notice
This spring, the Social Security Administration (“SSA”) has begun sending “Employment Correction Request Notices,” or no-match letters, to all employers with at least one W-2 form in which an employee’s name and Social Security number (“SSN”) does not match their records. Employers who receive such letters should not use the letters as reason to take adverse employment actions against their employees. In fact, such action may violate the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination on the basis of national origin, citizenship status or immigration status, document abuse during the employment eligibility verification process, and retaliation. Instead, employers should inform the employee of the no-match, verify the accuracy of their personnel records, and give the employee a reasonable time to contact the SSA office and correct the error.
For a complete list of steps employers should take upon receiving a no-match letter and information on how to avoid no-match letters, please see this month’s copy of the HLG Advocate.
If you have questions regarding this matter, please contact your HLG attorney or Rebecca M. Baibak, Esq. at email@example.com.
On August 7, 2017, the Ninth Circuit upheld charges against DLS Precision Fab LLC, a now bankrupt sheet metal company, which resulted in $305,000 in penalties for employing unauthorized immigrants. In this decision the court rejecting the company’s arguments that a rogue HR director was to blame.
DLS was found to have failed to comply with the INA’s worker verification requirements and employed more than a dozen individuals known to be ineligible to work in the U.S. DLS attributed its failure to properly vet employees on a rogue HR director who, unbeknownst to it, shirked compliance to the point “of literally stuffing the government’s correspondence in a drawer and never responding.” The Court was not persuaded by this argument.
The bulk of the charges stem from I-9 violations. I-9 violations are not merely violations when filed but remain continuing violations until DLS is no longer required by law to retain them (three years from the date of hire or one year after termination). As for retaining eligible employees, the clock starts upon termination. DLS was therefore not able to use the statute of limitations as a defense.
While these appear to be a pretty blatant violations, it is still a good reminder that properly vetting your employees and maintaining your I-9 records is very important.
USCIS will publish a new Form I-9, Employment Eligibility Verification by November 22, 2016. As such, employers can continue to use the current Form I-9, dated 03/08/2013 until 01/21/2017. On or before 01/21/17, employers must use the new form.
Immigration and Customs Enforcement (ICE) served Jula888, LLC (Para Tacos La Chilanga) on August 4, 2014 with Notice of Inspection (NOI) which required production of the Forms I-9 for its employees, along with other business documents by August 7, 2014. On August 13, 2014, Jula888, through their attorney, notified ICE that no records were available to be produced. On December 15, 2014, ICE served Jula888 with Notice of Intent to Fine (NIF) with one count, alleging 32 violations of 8 USC 1324(a)(1)(B). Specifically, failure to prepare and/or present Forms I-9 for 32 employees. ICE proposed a fine of $34,408.00. Jula888 timely filed a request for a hearing before an Administrative Law Judge (ALJ) with the Office of the Chief Administrative Hearing Officer (OCAHO). ICE filed its complaint incorporating the violations included in the NIF, including the proposed fine. On September 21, 2015, Jula888 filed its prehearing statement, agreeing to the first six proposed stipulations, but not the seventh which concerned whether or not the 32 individuals were in fact employees of the company. On December 18, 2015, ICE filed a Motion for Summary Decision contending that it has it burden demonstrating the absence of a genuine issue of material fact as to Jula888’s liability for the 32 violations. Jula888 filed a Response to the government’s Motion for Summary Decision on January 20, 2016 arguing that the Government has not presented any evidence regarding the number of people employed by Jula888. On June 9, 2016, the ALJ ordered the parties to submit additional evidence. Jula888 did not provide any additional evidence. The evidence from ICE included testimony from former employees confirming the number of employees at each location and sworn statements from current employees confirming the number of employees, the fact that they were undocumented and that wages were withheld to pay smuggling fees. Based on the evidence in the record, OCAHO granted the government’s motion but adjusted the fines as a matter of discretion to an amount close to the maximum of permissible penalties.
On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).