ARE YOU I-9 COMPLIANT?: New Regulations Issued by ICE Requir

Failure to maintain accurate I-9 records can result in substantial fines and even imprisonment for continued employment of persons not authorized to work in the United States. Recent changes to the regulations now require verification of any social security numbers and documents questioned by the Social Security Administration, immediate response to Department of Homeland Security notices, and place employers on notice where an employee has requested sponsorship for a work visa or labor certification.

As recently reported in the New York Times, President Bush has announced a nationwide crackdown on employers of illegal aliens. According to newly announced regulations, an employer may be found to have violated the law when they continue to employ a worker, after they have “constructive knowledge” that an employee is not authorized to work.

In the past, constructive knowledge was vaguely defined and did not provide guidelines to the employer. Now an employer may be found to have constructive knowledge that a worker is not authorized to work when that employee requests a work related visa or labor certification. Other examples of constructive notice described by the new regulation include: failure to complete the I-9 form, failure to take action after an employee request for a work visa or labor certification, receipt of a “no match” letter from Social Security Administration and written notice from USCIS or USICE regarding immigration documents supporting an I9 form.

Under the new regulations an employer has 93 days to correct any problems associated with constructive knowledge that an employee is not authorized to work. In the case where a “no match” letter is issued by the Social Security Administration, filling out of a new I-9, supported by documents providing a social security number that is not in dispute is required. Should an employer correct its records it may avail itself of “safe-harbor” protection.

Where a “no match” letter or notice regarding validity of an immigration document is received by the Employer from the Department of Homeland Security the employer has only thirty days to contact the government agency and discuss its employee’s right to work in the United States.

This enforcement effort by the Bush Administration is clearly an effort to bring employers into the immigration reform debate. Just as the Roosevelt administration strictly enforced prohibitions against alcohol in the 1930’s to bring about the end of federal prohibition of alcohol, the Bush administration is seeking changes in the statute through strict enforcement of our current immigration laws.

Now more than ever, strict compliance with the rules and effective corporate housekeeping with regard to I-9 forms must be done by employers. Recently I conducted a seminar where ICE officers stated that companies with dedicated Human Resources employees and training will receive more severe fines and penalties for I-9 violations. The most severe punishments on employers are reserved for managers and executives who have encouraged employees to seek false documentation of their right to work. Small businesses within ethnic communities should expect to be targets of enforcement. Also, because unlawful employment may be considered “harboring” an individual who does not have status, that could in turn impact the immigration case of the Employer who is seeking residency or U.S. Citizenship.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.