Form I-9-Verification of Employment Eligibility

Whenever an employer hires an employee, it is responsible for completion and retention of form I-9 for that individual. This is true even if the new employee is a U.S. citizen. The form requires the employer to verify the employment eligibility of the employee and record the document information. The form lists numerous documents that the employee may submit to establish his or her identity and employment eligibility. It is important to note that the employee must submit only original documents. The one exception is a birth certificate. The employee may submit a certified copy of the birth certificate. The employer cannot be charged with a verification violation if it properly completed form I-9 and ICE (U.S. Immigration and Customs Enforcement) determines the employee is not authorized to work. The reason being that the employer has a good faith defense that it took the required steps to verify employment eligibility of the employee. The government would have to prove actual knowledge by the employer that the employee was not authorized to work.

While employers are required to verify eligibility for employee, they are prohibited from making judgments, decisions, or engaging in conduct that may violate discrimination laws. As such, employers are to exercise significant care to ensure that employees’ civil rights are not violated while it seeks to fulfill its I-9 compliance obligations. To this effect the US Department of Justice, Civil Rights Division, has issued a handbook to assist employers comply with I-9 requirements while preserving employees’ rights.

Employers who employ unauthorized workers or fail to comply with the I-9 requirements may be subject to penalties.

Click here for frequently asked questions regarding the I-9.

USCIS Announces Automatic Employee Verification Program

Penalties For Employing Unauthorized Workers

If an employer does hire workers who are unauthorized to work in the U.S., its subjects itself to civil and criminal penalties pursuant to INA §274A(e)(4), 8 U.S.C. §1234a(e)(4). This includes the following:

i.   Cease and desist orders;

ii.   Civil penalties for each offense for employing unauthorized workers
     a.   First offense - $275 to $2,200 for each alien

     b.   Second offense - $2,200 to $5,500 for each alien

     c.   Third or more offenses - $3,300 to $11,000 for each alien

iii.   Civil Penalties for Paperwork violations (i.e. failure to fill out and maintain I-9s correctly)
     a.   $110 to $1,100 for each I-9

iv.   Criminal Penalties for pattern and practice violations
     a.   $3,000 and/or six months in jail

     b.   ICE defines pattern and practice as regular, repeated, and intentional activities, but does not include isolated, sporadic, or accidental acts. 8 C.F.R. §§274a.1(k), 1274a.1(k)

Click here for the USCIS memorandum regarding employer sanctions for employing undocumented workers or I-9 violations.

H-1B Dependent Employer

All employers sponsoring aliens for H-1B visas must make an attestation to the U.S. Department of Labor as to whether they are an H-1B Dependent Employer. Employers make this attestation on form ETA-9035. Whether an employer is a H-1B Dependent Employer is determined based on the ratio between the employer’s total work force in the U.S. (including both U.S. workers and H-1B visa holders) and the employer’s H-1B employees. An employer is a H-1B Dependent Employer if:

i.   it employs twenty-five or less full-time equivalent employees and it employs eight or more H-1B visa holders;

ii.   it employs twenty-six but not more than fifty full-time equivalent employees and it employs thirteen or more H-1B visa holders; or

iii.    it employs H-1B visa holders equal to at least fifteen percent of its full-time equivalent employees.

Full-time equivalent employees includes only person employed by the employer and does not include bona fide consultants or independent contractors. Employers who are H-1B Dependent must make additional attestations that they will not displace qualified U.S. workers from their workforce, that they will not displace qualified U.S. workers from another employer’s workforce, and that they will recruit and hire U.S. workers who are equally or better qualified than the H-1B visa holders.

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