E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

As we finish applauding or booing (whichever you feel like) President Obama’s decision to grant deferred action to DREAMers, we need to think about potential I-9 compliance issues which may arise with so many individuals receiving work authorization documents or cards (EADs).

One potential issue is where a current employee receives an EAD but previously he provided fraudulent documentation, such as a fraudulent permanent resident card, EAD, or Social Security card, to you, the employer. That employee then presents a new and valid EAD to the HR manager and confides the prior documentation was fraudulent. What should an employer do in this situation? Much depends on your company’s policy on presenting fraudulent documents or lying on a company or government document.

There are several options. The first is to accept the new EAD, have a new I-9 form filled out and attach the old I-9 form to the new one with an explanation of the circumstances of completing the new I-9 form. If your company has a policy or practice of copying the underlying documentation, or is required to under state law, the new EAD should be copied. This option should only be utilized if your company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document.

A second option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee is going to be terminated. However, if the company does not have a policy prohibiting their re-hire, the company may offer to re-hire the employee and fill out a new I-9 form with an explanation of the circumstances.

The third option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company or government document and that employee is not eligible for rehire. Thus, the employee must be terminated without a chance of rehire. This action is particularly harsh but may be the only way for an employer to go if it wants to remain consistent with its policy.

The option that a company chooses will be dictated by your company’s policy and practice. Don’t have a policy concerning employment of employees who have presented fraudulent documents or lied on a company document? It may be time to start thinking about getting one. Consult with a qualified immigration compliance or employment attorney to develop an I-9 policy that addresses all the current legislation and best practices.

Always be consistent in your practices, especially when it comes to documentation. If you do a good deed by retaining a DREAMer after he has provided a valid EAD and admitted previously providing a fraudulent document, then, to be consistent, you may have to retain an employee who lied on his application about a felony conviction. Again, consistency is important.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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Yesterday, President Obama unveiled his fiscal year 2010 budget which supports strengthening border security as well as immigration enforcement and services. Of particular interest, the President’s budget would provide $112 million for the continued expansion and improvement of E-Verify. A fact sheet outlining the various Department of Homeland Security provisions is available at the Office of Management and Budget web site.

In related news, Secretary of Homeland Security, Janet Napolitano, testified before the Senate Committee on the Judiciary to discuss DHS initiatives, including strengthening work eligibility verification through E-Verify. As before, she stated that E-Verify is an essential tool for employers to maintain a legal workforce, citing increasing enrollment (more than 122,000 employers) and improving accuracy (only 0.4% successfully contested mismatches). She also emphasized that DHS is dedicated to increasing E-Verify’s effectiveness through employer training and a strong monitoring and compliance program. Outreach plans include releasing bilingual English and Spanish videos for employers and employees to teach them the proper use of E-Verify and providing additional online materials.

Although additional materials will be a welcome relief, employers should strongly consider utilizing an electronic I-9 and E-Verify software package to ensure 100% compliance with both I-9 and E-Verify rules, which can often be confusing and even contradictory. Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website to read about I-9 and E-Verify best practices and learn how software can meet these new demands.  

Yesterday, the Obama administration sent a memo to federal agencies and departments, directing them to freeze any pending rules until they’ve had time to conduct a “legal and policy review” of each one. Apparently, this type of directive is normal for incoming presidents, but it does raise an interesting question as to whether the effective dates of the E-Verify federal contractor rule or even the new I-9 rule will be extended.

Although both rules have already been published, the memo from Chief of Staff Rahm Emanuel directs the agencies to “consider extending for 60 days the effective date of regulations that have been published in the Federal Register but have not yet taken effect…for the purpose of reviewing questions of law and policy raised by those regulations.”

Since the E-Verify rule in particular raises substantial questions of law and policy, it seems likely that it may be delayed again…note though, that most insiders still consider its implementation to be inevitable.