Every employer in the United States must verify that their employees are eligible to work here, through citizenship, permanent residence, or work authorization. Employers must review certain documents provided by employees, and must keep records of this review. Immigration authorities have created Form I-9 for employers to record the information demonstrating each employee’s work eligibility. An employer might be tempted to skip parts of the form and keep copies of the employee’s documents instead. While this seems to fulfill the law’s intent of maintaining a record of the employer’s inquiry into the employee’s work eligibility, the Ninth Circuit Court of Appeals in Washington recently held that this does not satisfy the employer’s legal obligation. Ketchikan Drywall Services, Inc. v. Immigration and Customs Enforcement, et al, No. 11-73105, slip op. (9th Cir., Aug. 6, 2013).
Federal immigration law requires employers to maintain specific records of employment eligibility in a specific format. 8 U.S.C. § 1324a(b). Section 1 of Form I-9 requires the employer to attest that they have reviewed specific documents and verified the employee’s eligibility. Section 2 describes the acceptable documents, which must indicate the employee’s identity and employment authorization. Employers must retain I-9 records until either three years after the employee’s hire date or one year after the termination date.
The appellant, Ketchikan Drywall Services (KDS), is a Washington corporation that employs a few full-time and part-time employees, as well as many others on an as-needed basis. In 2008, Immigration and Customs Enforcement (ICE) conducted an inspection of KDS’s I-9 records. It served KDS with a Notice of Intent to Fine in April 2009. ICE reportedly found 271 total violations, claiming that KDS failed to provide any I-9 form for forty-three employees, failed to complete Section 1 for sixty-five employees, failed to complete Section 2 for 110 employees, and failed to complete Sections 1 and 2 for fifty-three employees. An administrative law judge (ALJ) granted ICE’s motion for summary decision for 225 violations, granted summary decision to KDS on the other charges, and ordered a civil penalty of $173,250.00.
The Ninth Circuit affirmed the ALJ’s ruling, rejecting KDS’s argument that § 1324a(b)(4) allowed it to keep copies of employee eligibility documents instead of completed I-9 forms. That section permits employers to keep copies of employee documents, but does not specifically state that they may substitute for Form I-9. The court found that the statute’s plain language does not allow KDS’s interpretation that keeping copies of employees documents is an alternative to keeping I-9 forms. The forms must include transcriptions of the required information, and a new attestation as to an employee’s eligibility each time the employer hires them.
The immigration system is complex, and can be quite confusing. Applying for immigration benefits requires a thorough understanding of the law and careful preparation. Immigration attorney Samuel C. Berger helps businesses petition on behalf of prospective immigrant employees to enable them to come to the U.S. We also represent immigrants and prospective immigrants who seek visas to come to New York or New Jersey areas, or who have already made their homes in this area. To schedule a confidential consultation to see how we may assist you, please contact us today online or at (212) 380-8117.
More Blog Posts:
Federal Court Blocks City Ordinance That Penalizes Businesses Employing Undocumented Workers, New York & New Jersey Immigration Lawyer Blog, November 5, 2013
Immigration Authorities Raid New York Convenience Stores for Alleged Employment Violations, New York & New Jersey Immigration Lawyer Blog, June 27, 2013
Revised I-9 Form Became Mandatory for Employers on May 7, 2013, New York & New Jersey Immigration Lawyer Blog, May 29, 2013
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