Hiring Workers: Employers Fined For Illegally Checking Green Cards; Understanding Your I-9 Obligations

Although you’re required to determine the legal status of all workers you hire, you can get hit with discrimination complaints and fines if you ask for excessive documentation or single out particular groups, such as immigrants. And a spate of employer prosecutions by the federal Department of Justice for violation of a little-known rule involving green cards illustrates the problems that can arise if you don’t scrupulously follow procedures for checking I-9 documentation. We’ll explain what this is about and provide some guidelines on verifying workers’ employment eligibility.

Beware Of Checking Expired Green Cards

A special Justice Department division that investigates immigration-related unfair employment practices has brought discrimination charges for I-9 document abuse involving green cards against a number of employers, including Macy’s West department stores, a nationwide hotel chain, and hotels and casinos in Las Vegas, Nev., and Atlantic City, N.J.

A common problem occurs when an employee who has permanent U.S. residency status presents a green card with a 10-year expiration date, and the employer rechecks their employment status or suspends or terminates the worker when the green card expires. Employers get into trouble because green cards don’t need to be reverified by employers, as permanent residents remain authorized to work in the U.S. even if their green card has expired. And, even though the INS handbook for employers doesn’t spell this out, the Justice Depart- ment takes the position that reverifying green cards violates immi-gration laws because it’s illegal for employers to ask immigrant employees to produce more or different work-authorization documents than U.S. citizens.

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Verifying Employment Eligibility

Follow these guidelines to avoid problems complying with I-9 rules:

1. Fill out I-9 forms for all employees. New hires must complete the Employment Eligibility Veri- fication Form I-9 on their first day of work establishing their identity and their legal eligibility to work in the U.S.

    

2. Review verification documents. The employee has three business days from the first day of work to bring in documents verifying employment eligibility. Accept- able documents are listed on the back of the I-9 form. The employer must complete the second part of the I-9 verifying that they examined the employee’s documents.

    

3. Don’t ask for more or specific documents. Show employees the list of approved documents from the I-9 form and let them choose the document(s) they will present. Insisting on more or different documents than the required minimum could be considered discriminatory.

    

4. Reject questionable documents. If a document doesn’t appear genuine or to belong to the employee, you can ask for other documentation from the I-9 list. If a dispute arises about the document’s legitimacy, refer the employee to the agency that issued it. Accept only original documents except for certified copies of birth certificates.

    

5. Observe documentation deadlines. If an employee can’t produce I-9 documentation within three days because a document was lost, you can accept a receipt showing they have applied to replace it. Generally, the employee must present the document within 90 days. Note that receipts for applications to extend expired work status are not acceptable documentation.

    

6. Recheck expiration dates. If an employee is an alien temporarily authorized to work in the U.S. or provides other documentation with an expiration date, on or before the expiration date you must reverify in section 3 of the I-9 form that the employee is still authorized to work. However, your obligation to recheck an employee’s work eligibility does not apply to workers who have permanent residency status. Thus, once an employee has produced a green card, don’t ask them to present other documentation. The same principle applies to a U.S. citizen who presents a passport as I-9 documentation. Don’t recheck their work eligibility; even if the passport expires, their work eligibility status does not.

    

7. Don’t refuse to hire based on expiration dates. You can’t refuse to hire someone because a document is about to expire. To recheck the status of employees who are temporarily authorized to work in the U.S., you can use a tickler system as a reminder to alert employees to approaching expiration dates. Give workers plenty of advance warning because the INS can take up to 90 days to process extension applications.

    

8. Retain I-9 records. Keep the original I-9 forms for three years from the hire date or one year from the termination date, whichever is longer. They should be kept separate from an employee’s personnel file. You don’t need to retain copies of the verification documents.

Penalties For I-9 Violations

Ignoring your responsibilities to properly complete I-9 forms and verify documents can be costly. You can be fined up to $10,000 and get jail time for violations. And you can be hit with back-pay obligations and penalties if you improperly terminate or suspend an employee because of an expired green card.

For More Information

For more details on I-9 forms, you can get an INS handbook for employers (Form M-274) at your local INS office.