Knowingly employing an unauthorized worker is prohibited by federal law. As a result, I-9 audits are a necessary part of doing business, as the penalties for noncompliance are too severe to ignore this fact.
One question arises often during the I-9 audit process: what to do when you discover that an employee has not provided valid proof of employment authorization. When this occurs, the proper course of action is typically to notify the employee of this fact and give the employee a reasonable period (a conservative approach would be three days) to provide proof that he or she is authorized to work in the United States. Where collective bargaining agreements are concerned, this is often the required next step.1
However, sometimes there is reason to believe that the employee has provided a false identity. Many federal courts of appeal have held that where an alien misrepresents his employment authorization status on the Form I-9, this triggers the “false claim bar” under federal law,2 rendering the individual “inadmissible” under federal immigration law and potentially deportable under the Immigration and Nationality Act.3
A key question for employers then follows: If I believe an employee has misrepresented his or her work authorization status on the I-9, am I on notice that I am employing an unauthorized worker, facing potential fines and criminal penalties?
The answer is best provided by looking to guidance from U.S. Citizenship and Immigration Services (USCIS). Despite what these federal appellate courts have held regarding the false claim bar to admissibility, USCIS suggests that employers should give the employee a chance to provide valid proof of employment authorization.
As one USCIS guidance document explains,
For example, presentation to the employer of a new Social Security Card reflecting a new Social Security number and new name raises a material question as to the identity of the employee, the veracity of information on Form I-9, the genuineness of any documents presented in Section 2 that contain a Social Security number, and the relation of these documents to the person who presented them. The employer can no longer reasonably rely on the Form I-9 to be assured that the individual is authorized to work. USCIS suggests completion of a new Form I-9 in this instance to ensure the employee is eligible to continue in employment.” (emphasis added)
Further, the USCIS I-9 Handbook for Employers states that “[i]n cases where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment. However, there may be other laws, contractual obligations, or company policies that you should consider prior to taking action.” If the employee is unable to provide valid documentation at this point, then his employment must be terminated. Of course, an employer is not obliged to allow the employee to provide new documentation, and many companies have strict policies requiring immediate termination of an employee who provides false employment documentation in the first instance.
I-9 compliance is often confusing, especially when court rulings seemingly conflict with federal agency guidance. If you have questions about ensuring compliance in work authorization and immigration matters, McGuireWoods can assist you. Our attorneys offer experience and skills in advising companies on proactive measures, such as setting up and conducting I-9 reviews, and defending companies facing notices of inspection and government investigations.