Employer Sanction Defense

Employer Sanctions Provisions of IRCA

There are many ways in which an employer can incur liability under the employer sanctions provisions of IRCA. The most obvious way to get into trouble is to knowingly hire an unauthorized alien. IRCA's employer sanctions provisions are incorporated into the main body of immigration law— the Immigration and Nationality Act ("the Act" or "INA")— at section 274A(a). That section provides that it is unlawful for an employer to hire an "alien" (read "non-citizen") knowing that he or she is not authorized to work for him. To do so is a "knowing" or "substantive" violation of the law.

Nearly ten years after the passage of IRCA, many employers erroneously assume that not knowingly hiring or continuing to employ illegal aliens is the full extent of their immigration obligations. To the contrary, it is unlawful to hire anyone without complying with certain "employment verification procedures." Section 274A(b) directs each employer to verify that every employee hired after November 6, 1986 is authorized to work in the United States. This obligation applies to citizen and alien job applicants alike.

This verification takes place when the employer and employee complete the "Employment Eligibility Form," commonly known as form "I-9." The I-9 Form serves two functions: First, it allows employers to assist the INS in enforcing the immigration laws. Second, the I-9 may be used as evidence against an employer who fails to properly complete and store the forms, whether or not any of its employees are illegal aliens.

Practical Advice for Employers

In 1991, the INS published the current edition of its "Handbook for Employers." The booklet is designed to educate employers as to their obligations under the employer sanctions section of IRCA. The Handbook contains the latest version of the I-9 form and walks the employer through the employment verification procedures. For all INS' efforts, however, the Handbook leaves many important questions unanswered—especially with respect to effective, practical ways that employers can protect themselves from sanctions.  
While no general advice can substitute for specific advice from the employer's legal counsel, the following recommendations are offered to help employers avoid immigration violations:

1. Make certain each I-9 is completed fully and timely.
   
   Employers should ensure that every new employee completes section one of the I-9 on his first day of employment. By the third day of employment, each new hire must provide acceptable documentation showing his identity and employment eligibility, and the employer must complete section two of the I-9. An employer who observes these two deadlines has already avoided the most common mistakes.
   
   Be mindful that the employer need not, and probably should not, examine these documents prior to the date of hire. Asking questions concerning the potential employee's age and ethnicity may leave the employer wide open to a charge of discrimination in the event that the candidate is rejected. The Ninth Circuit has held, in Collins Food, supra, that an offer of employment does not constitute a "hire" and therefore does not require employment verification prior to the commencement of employment.
2. Keep adequate records
   
   The regulations clearly require employers to retain the original I- 9's or a microfiche copy of them. As a safeguard, employers may want to go one step further and photocopy all documents presented by an employee in support of an I-9 as is permitted, but not required, by INS regulations.
   If a supporting document turns out to be fraudulent, the photocopy will establish that the employer examined the document and that it appeared to be genuine on its face. Since an employer is not required to be a document expert, a photocopy helps to establish that the employer examined the document and had no visual cues to doubt the document's authenticity. Photocopying the documentation may help to insulate an employer from sanctions liability.
   
   The employer must examine original or certified, rather than photocopied, documents in completing the I-9. In New El Rey Sausage v. INS, 925 F.2d 1153 (9th Cir. 1991), the Ninth Circuit held that an employer must exercise "due care" in accepting documentation provided by the employee and cannot simply accept the representations of an employee regarding employment eligibility.
   
   Furthermore, the employer should always make a photocopy of the original I-9 and its accompanying documents for its own personnel records, separate from the records it keeps in the event of an INS audit. INS requires inspection of the original documents and is very likely to confiscate the originals in the course of an investigation, leaving the employer and employer's counsel with no records from which to build a defense.
3. Establish a system for updating I-9 records
   
   Wise employers will establish a "tickler" system for those I-9s which require periodic re-verification. A tickler system will avoid any inadvertent failure to update the I-9, a clear violation of IRCA. Given the volume of I-9 records, a tickler system will also serve to remind the employer to discard outdated I-9's.
   
   Employers should recall that termination of employment does not necessarily mean that the individual's I-9 may be immediately discarded. Remember the rule: maintain the I-9 for three years after hire or one year after termination, whichever comes later.
4. Segregate I-9 forms from personnel files
   
   Employers should create a separate file for I-9s, apart from standard personnel files. Employers are frequently caught unprepared for I-9 audits, and often must scramble to compile the necessary records. A simple precaution such as this greatly reduces the employer's burden and anxiety should an audit ever be conducted. Moreover, maintaining a separate I-9 file will also better serve an employee's privacy interests and lessen the employer's liability for failing to protect those interests. Most employers would not care to have government investigators combing through their personnel files and thereby gaining access to confidential information irrelevant to the I-9 audit. In the event of government inspection, counsel should be aware that employers are entitled to three days notice to produce their I-9 forms.
5. Keep plenty of spare I-9s on hand
   
   Many employers simply do not stock an ample supply of blank I-9s in the workplace. An employer does not have much leeway when it comes to I-9s—they must be executed in a timely fashion. It is a weak defense at best to argue to an INS investigator that "we ran out of forms that day."
   
   While the law permits private entities to reproduce the official form, the reproduction must conform in size, wording and language with the officially printed form. An employer may not reproduce the form on company letterhead or create a "new and improved form" better suited to fit the company's needs. An altered or modified version of the I-9 form is likely to be treated as a violation of IRCA. With respect to employers’ sanctions, good intentions may be of limited value.
6. Be judicious in locating the I-9 originals
   
   Employers should designate where they will store their I-9 forms and who will be responsible for the safekeeping of the forms. Be advised that retaining I-9's at a central location could pose logistical problems if INS decides to conduct an inspection at a lone local office. For example, if the INS is auditing a business in Los Angeles but the forms are stored at the company headquarters in another state, the employer must still produce the I-9's for inspection within three days or face monetary penalties. This situation illustrates how photocopies of the I-9s and their accompanying documents may be of use. While this courtesy in no way alleviates the employer's duty to provide the original I-9's for inspection, it does at least evidence the employer's good faith compliance with the inspection.
7. Conduct internal audits periodically
   
   An employer should conduct in-house audits on a regular basis to ensure that it is in compliance with IRCA. These in-house audits should be conducted by an independent expert rather than the employer, because an independent expert can better examine the I- 9's through the eyes of an INS investigator.