GT Alert

I-9 Employment Eligibility Verification Compliance Procedures

October 2003
By Greenberg Traurig's Business Immigration Group

  View or download the PDF version of this Alert here.

Raids and pending investigations in the news are evidence that companies need to protect themselves against potential fines, U.S. Department of Labor and Immigration Agency audits, and debarment from immigration programs. Thoroughly reviewing I-9, Employment Eligibility Verification compliance procedures is a giant step in the right direction. A delicate balance between compliance and avoiding unintended scare tactics that may disrupt the workforce must be sustained when internally examining such matters.

By law, an I-9 Employment Eligibility Verification Document must be completed for each employee within three days of hire. During the completion of an I-9 an employer must attest on the I-9, under penalty of perjury, that it has been presented with and has reviewed facially valid documents evidencing both the person’s identity and employment eligibility. Substantial fines can be imposed if these requirements are violated, even if only technical violations are at issue. Often times these forms are completed incorrectly or not all.

In cases of a merger or acquisition, the new, resulting employer is responsible for the adequacy of the I-9 records maintained by the predecessor employer. This is also the case in transactions involving the sale of stock or assets or whenever a new employer continues to employ some or all of the previous employer’s workforce. If an acquiring company discovers that the previous employer employed people without valid work authorization, the acquiring company has an obligation to immediately cure the violations. Due diligence prior to an immigration "event" is an extremely efficient and cost-cutting preventative measure.

Additionally, if an employer subcontracts services to an outside party, it may also be responsible for violations if there is knowledge of the contractor’s employment of undocumented workers.

To avoid and limit liability, a company should routinely review its I-9 procedures to ensure that it is in compliance. This must be done in a non-discriminatory way. Many employers understand that aggressive compliance with the employment verification requirements may engender a climate of fear amongst the workforce and result in either claims of discrimination or a significant loss of employees. Developing a working strategy for ensuring compliance becomes difficult when dealing with a localized workforce as well as one spread throughout the nation. Competent immigration counsel can assist you in defining and maintaining that equilibrium. Greenberg Traurig has extensive experience with I-9 compliance from a practical business and legal perspective.

© 2003 Greenberg Traurig

Additional Information:

For more information, please review our Business Immigration Practice description, or feel free to contact one of our attorneys.

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