[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, co-authored by Bruce Buchanan, The I-9 And E-Verify Handbook.]
What if an employer knows an employee is not authorized to be employed even though the Form I-9 was properly completed?
An employer who is aware that an employee is not authorized to work, in spite of everything on the Form I-9 appearing valid, violates the Immigration Reform and Control Act (IRCA) since the employer is considered to have actual knowledge that an employee is not eligible for employment. An employer that suspects that an employee is ineligible for employment should be very cautious when considering terminating the employee, or even requesting supplemental information, without a substantial foundation supporting this belief. Acting upon a mere suggestion from another employee that a particular employee is not authorized for employment could likely result in a discrimination lawsuit, seeing as the IRCA does not require employers to make inquiries under these circumstances. However, if an employee provides an employer with information pertaining to the employee’s immigration status, the employer would be considered to have knowledge. In the event that the employer continues employing such an individual, it is a serious violation.
When would an employer be considered to have “constructive knowledge”?
The United States Department of Homeland Security (DHS) regulations hold employers liable not only when they have actual knowledge that an employee, but also if knowledge could be inferred through notice of certain facts that would “lead a person, through the exercise of reasonable care, to know about a certain condition.” Code of Federal Regulations, Title 8, section 274a.1(e). This is called ”constructive knowledge,” and DHS provides a few examples in its rules, including:
- The employer’s failure to complete or failure to properly complete Form I-9.
- The employer’s possession of information that would indicate the alien is not authorized to work, such as labor certification. This would generally be applicable only when an employee has already claimed to be a U.S. citizen or permanent resident on the Form I-9.
- The employer’s wanton and reckless disregard for the legal consequences of permitting another individual to introduce an unauthorized employee to its workforce.
The list above is not exhaustive, and it is important for employers to remain cognizant of the anti-discrimination laws. Additionally, failing to re-verify a Form I-9 requiring re-verification will usually be considered constructive knowledge.
A more complicated situation has arisen in cases in which an employer received a no-match letter from the Social Security Administration (SSA) with regards to an employee whose name did not properly match the Social Security Number he or she provided. There is no clear rule dictating the degree to which employers are required to follow up. While some lawyers advise their clients not to terminate employees in no-match cases, other lawyers place more importance on the likelihood that such errors could have been the result of from computer errors, typographical mistakes, or other issues and therefore take the position that an employee’s failure to resolve the problem after a reasonable period of time could be construed as constructive knowledge.
A less complicated situation is found when an employer receives a Notice of Suspect Documents from U.S. Citizenship and Immigration Services (USCIS), notifying him or her that an employee has submitted fraudulent documentation. The courts generally consider such a notification as constructive knowledge of a problem belonging to the employer, who would then need to re-verify.
What if an employee later presents a different Social Security number from when the Form I-9 was completed?
Since a person is assigned only one Social Security number in his or her lifetime, it is very suspicious when an employee comes to an employer with a different Social Security number than was presented at the time of hire. In such situations, it is usually the case that a fraudulent number was presented by the employee to begin working and then, through some independent venture such as filing a green-card application separate from the employer, obtained a valid number.
Similarly, an employee should have only one “A” or “Alien number.” Renewal of the employee’s Permanent Resident card or moving from Employment Authorization to Permanent Residency has no effect upon the Alien number. The authors are aware of only two instances in which an employee had two legitimate “Alien numbers,” and these were instances in which the employee failed disclose the number to U.S Immigration and Customs Enforcement (ICE) or USCIS. Possessing two different “Alien numbers” is a strong indicator that an individual is currently or has previously been in unlawful status.
It is in the best interest of employers, of course, to speak to employment counsel involving a violation of an employer’s policies regarding issuing false statements during the hiring process. With respect to the Immigration Reform and Control Act (IRCA), the employer should inquire regarding the circumstances surrounding the acquisition of the new number. Even if the employee admits to providing a false statement, however, the employer is not required to terminate the employee. Furthermore, if the employer did not have knowledge of the employee’s lack of work authorization, the employer retains the ability to continue employment of the individual. In such circumstances, a new Form I-9 should be completed, and the previous Form I-9 needs to be attached to it along with an explanation. It is also important that the employer correct the number with the Internal Revenue Service so as to ensure that taxes are properly withheld.
However, in the event that the employer has an honesty policy stating an individual can be terminated for lying on a company document, and that policy has been followed, then the employee must be terminated. The state of California has a law preventing the discharge of an employee as the result of providing updated personal information including name, Social Security number, “A” or “Alien number,” “unless the changes are directly related to the skill set, qualifications, or knowledge required to do the job.”
Is an employer on notice that an employee is not authorized to work if the employee requests the employer to petition for the employee’s permanent residency?
DHS regulations list an employer being requested to file a green-card application through labor certification as an example of a situation in which there may be constructive knowledge that the employee is ineligible for employment. This would be the case, for example, when the employer is requested to file a green-card application for an employee who stated on the Form I-9 that he or she was a U.S. citizen or lawful permanent resident. However, certain situations in which an employee may request that an employer file for permanent residence would not indicate a problem.
The most glaring example is when an employee is on a nonimmigrant work visa sponsored by the employer. It may also happen when an employee is in a status that permits employment but not actual permanent residency. This could be the case, for example, if an employee is in temporary protected status (TPS), asylum status, or has a green-card application pending through another petition, and the employee is looking to have a backup strategy to gain permanent residency.
What if the employee states in Section 1 that he or she is a permanent resident or U.S. citizen but then presents an employment document with an expiration date?
The employer in this situation should confirm whether the employee properly understood the question regarding status in Section 1, because the document presented is facially inconsistent with the status claimed. One possible explanation could be that the employee has a pending permanent residency petition and has an Employment Authorization Document (EAD) associated with that application. If the error was committed by the employee, he or she needs to both correct and initial the attestation or supply documentation consistent with the claim of being a permanent resident (including documents that do not show permanent residency but that do show identity and work authorization, in the form of a driver’s license and Social Security card without annotations.) The employee may also complete a new Form I-9. If the employee states that he or she is s a U.S. citizen or permanent resident, then the employer should not accept an EAD since the document directly contradicts the status stated by the employee.
Should an employer re-verify a Form I-9 for an employee who is subject to a Social Security no-match letter?
The rules pertaining to Social Security Administration (SSA) letters informing an employer that an employee’s name and Social Security number (SSN) failing to match wew not in place at the time this was published.
In August 2007, DHS promulgated a regulation, set to take effect by September 2007, which requires an employer re-verify a Form I-9 after completing a series of procedures within a specified timeframe. A coalition of business and labor groups sued to overturn the regulation and succeeded in convincing a court to issue an injunction which blocked the regulation from taking effect. In August 2009, the 2007 rule was rescinded, and the SSA has since stopped issuing no-match letters, without addressing the permanency of this change.
If no-match letters are to return, lawyer’s interpretations differ only with regards to the “receiving” letter. Does the letter itself imply that an employer has knowledge of an employee’s suspicious SSN? This is not necessarily the truth, since numerous reasons prompting a letter form the SSA may have nothing to do with an employee’s immigration status, an employer cannot assume that the employee is improperly documents based solely upon this.
The employer needs to initially check to verify an error has not been made on the employer’s part. Once it is established that the problem was not caused by the employer, he or she should then notify the employee. Beyond that, no clear course of action under current law has been established. The no-match letters in the past have stated that they are not to be construed by the employer as a statement of the immigration status of the employee. Furthermore, a case out of the U.S. Court of Appeals for the Ninth District held that solely receiving a no-match letter from SSA does not constitute having constructive knowledge that an employee lacks work authorization.
A December 23, 1997, legacy Immigration and Naturalization Services (INS) opinion letter indicated that solely receiving a no-match letter does not constitute notice of an employee’s employment ineligibility. The letter did, however, indicate that a Social Security number with the following characteristics might lead to a duty to re-verify:
- The number has more than nine digits.
- The number has fewer than nine digits.
- The first three digits of the number are “000.””
- The first digit of the number is “8” or “9.”
- The middle two digits of the number are “00.”
- The final four digits of the number are “0000.”
A no-match letter regarding a Social Security number with such characteristics would be a reasonable indication that the employee’s SSN is falsified.
An April 12, 1999 opinion letter from the General Counsel of legacy Immigration and Naturalization Service (INS) stated that employers receiving no-notice letters are inherently on notice that an employee is not authorized to work once they receive the letter. It warned employers, however, “We emphasize that although it is incorrect to assume that an SSA discrepancy necessarily indicates unauthorized status, it would be equally incorrect for an employer to assume that in all cases it may safely ignore any possible INA relevance or consequence of SSA discrepancies.”
The letter went on to point out that a Social Security Administration no-match letter combined with other pieces of information received by the employer regarding the employee may be sufficient to put the employer on notice that an employee’s status is not valid for work authorization. Specifically mentioned in the letter was a warning that INS would likely consider the employer to have violated the Immigration Reform and Control Act if the employer had given an employee the opportunity to explain and reconcile a reported discrepancy with Social Security Administration records, and the employee failed to satisfactorily do so. That is to say, an employer that is beginning to question Social Security number discrepancies only to ignore the findings is worse than not beginning the inquiry in the first place.
What if an employer receives a U.S. Department of Homeland Security notice that there is a problem with a document presented in connection with a Form I-9?
The U.S. Department of Homeland Security has requirements for employers who receive notification from DHS that a document presented by an alien for employment verification purposes is invalid, fraudulent, or cannot be authenticated, and employers need to complete the steps to these requirements within a prescribed time frame. The initial uncertainty facing the employer is how quickly he or she needs to respond and to what degree.
An employer who receives a notice known as a Notice of Suspect Documents (NSD) would remain in compliance of the anti-discrimination rules of the Immigration Reform and Control Act if requesting additional documentation. The courts have consistently held that U.S. Immigration and Customs Enforcement does not need to provide irrefutable proof that the employee is ineligible to work, only needing to produce information that arouses suspicion. With respect to timing, an employer needs to react to the notification within 10 days of receiving it, though the precise action the employer needs to take within that 10-day window is debatable. In some circumstances, it may be the case that the employer needs only to notify the suspect employee, if the employee fails to provide any new work authorization or ICE has rejected the new documents it may warrant discharging the employee. Whatever action taken, it certainly must be reasonable relative to the situation.
Another type of notice from ICE is called a Notice of Discrepancies. This notice advises the employer that after reviewing the Forms I-9 and documentation submitted by the employee, ICE has not been able to conclusively determine the employee’s work eligibility. The employer should provide the employee with a copy of the notice and allow the employee an opportunity to supply ICE with additional information in the hopes of establishing his or her employment eligibility.
Once the employer follows up with the employee, the question regarding what action needs to be take. Obviously, the employer should provide ICE with the new documentation, which will allow ICE to determine the validity of the new documentation. If the employee provides new, valid documentation, without submitting the suspect document, then the employer has a defense against a later charge of knowingly employing an unauthorized employee.
What if an employee tells the employer that another employee is unauthorized?
Employers who receive a mere tip from another employee about an employee being out of status should not consider this to be knowledge, and employers who act on such a tip alone could be vulnerable to being found in violation of anti-discrimination laws.
According to a U.S. Immigration and Customs Enforcement/Office of Special Counsel December 2015 guidance, “tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. An employer is cautioned against responding to tips that have no indicia of reliability, such as unsubstantiated, retaliatory, or anonymous tips. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employer based on unreliable tips may be unlawful, particularly if the tip was made based on retaliation, the employee’s national origin, or perceived citizen status.”
Conversely, an April 12, 1999 opinion letter from legacy Immigration and Naturalization Service general counsel noted that an employer who receives a tip from another employee indicating an employee is unauthorized for employment, and the employer then receives a no-match letter, the employer would likely have constructive knowledge based on the “totality of the circumstances.”
Is an employer liable if it uses a contractor and knows the contractor’s employees are not authorized to work?
Yes. DHS regulations state that any individual who utilizes a contract, subcontract, or exchange to obtain the labor or services of a foreign employee in the United States, knowing that the employee is unauthorized to work, should be considered to have hired the employee for purposes of determining if a person has violated the Immigration Reform and Control Act (IRCA).
May an employer be deemed to have constructive knowledge when he or she failed to complete the Form I-9 for an employee or when the form is completed improperly?
Yes. In various cases, employers without direct knowledge of the employee’s status have been held to have constructive knowledge that the employee was unauthorized to work. Courts have held that if the Form I-9 is not completed properly, employers are not excused simply because there is a Form I-9. A court would analyze the circumstances surrounding the particular form and use a standard of what is reasonable when determining if an employer should have known that it was more likely than not that an employee was unauthorized.
May an employer be deemed to have constructive knowledge when it fails to re-verify a Form I-9?
Yes. Courts have found that an employer who fails to re-verify a Form I-9 when such re-verification is required will generally have constructive knowledge that an employee is unauthorized to work. The more complex issue is what course of action to take when the employee presents documentation unrelated to the expired document presented when he or she was hired. ICE and the courts have held that an employer has an obligation to make an inquiry with respect to the continuing employment authorization. This seemingly violates the anti-discrimination rules in the Immigration Reform and Control Act (IRCA) which are employers from specifying which documents an employee may submit. Congress addressed this issue, however, in Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which reserves punishment for inquiries made regarding continuing work authorization only when such inquiries are made for the purpose or with the intent of discriminating against the individual.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.