Tag: immigration

I-9 Form

Employers Must Use New I-9 Form by May 2020

On January 31, 2020, U.S. Citizenship and Immigration Services (USCIS) released a revised I-9 Form that employers must use by May 1, 2020. USCIS encourages employers to begin using the form for the onboarding of new employees and for re-verifications as soon as possible.

What Is the I-9 Form?

U.S. employers must have all new employees complete the I-9 Form at the beginning of employment to confirm eligibility to work in the United States. Employees must also show documentation to an authorized employer representative as outlined in the I-9 Form and its instructions. Employers generally cannot require employees to provide specific documents (e.g., social security card, driver’s license, etc.) to satisfy the I-9 requirement, but must allow workers to submit any combination of documents that meets the form’s parameters.

The I-9 Form comes in both an unfillable paper version; and a fillable .pdf document. Employers can print the paper version (non-fillable .pdf) and provide a copy to the employee to complete. Alternatively, employees and employers can complete the fillable .pdf version online using drop-down menus.

What Has Changed on the I-9 Form?

Substantive changes to the I-9 Form are relatively minor. Most important, the new form bears a new revision date of October 21, 2019. Employers should reference that date to confirm they are using the latest version of the document.

The instructions for both the fillable and unfillable .pdf were also updated. The new instructions clarify who can act as an authorized representative on behalf of the employer. Hint: it’s just about anyone that the employer designates. The instructions also provide additional clarification on which documents are acceptable for the completion of the I-9 Form. USCIS also updated the process for requesting paper Form I-9s and the Department of Homeland Security Privacy Notice contained in the Instructions.

Penalties for Violating I-9 Requirements

Failure to use the new Form I-9 by May 1, 2020, may result in a violation of Section 274A of the Immigration and Nationality Act (INA). U.S. Immigration and Customs Enforcement (ICE) enforces the INA. A violation of the INA’s employer responsibilities can lead to civil fines and criminal penalties.

Civil penalties for employer I-9 violations range from $230 to $2,292 per employee. Civil penalties for knowingly hiring, recruiting, referring, or retaining for employment an unauthorized alien range from $573 to $22,972 per employee.

Criminal penalties are possible if the employer engaged in a pattern or practice of knowingly employing illegal workers or has committed other serious violations.

ICE considers the following factors when assessing penalties against an employer: size of the employer; good faith efforts to comply; seriousness of the violation; history of previous violations; and whether the violation involves unauthorized aliens

Click here for more on ICE’s Form I-9 Inspection Process and potential non-compliance penalties.

What Should Employers Do?

Under the Trump administration, the number of employer investigations and audits by ICE has increased. ICE has developed a program intended to create a culture of compliance among employers to prevent employment by unauthorized aliens. The Department of Homeland Security has received an increased budget to handle the enforcement of the INA.

In addition to using the new I-9 Form, employers might take this opportunity to audit their organization’s compliance with the I-9 completion, storage, and retention requirements.

Employers who receive a Notice of Inspection from ICE or who want to review their current I-9 policies and procedures to verify compliance should promptly consult with their attorneys.

 

The new I-9 Form (dated October 21, 2019) and updated instructions are available here.

Immigration Retaliation

Immigration Retaliation Prohibited in New York

A recent amendment to New York’s Labor Law prohibits employers from retaliating against employees by threatening to or reporting them to immigration authorities. The new immigration retaliation prohibition relates to any efforts by an employee to exercise rights under the state’s extensive Labor Law protections. The amendment will take effect beginning October 25, 2019.

Who Will Be Protected?

The retaliation protections take effect once an employee has done any of the following:

  • Made a complaint that the employer has violated the NY Labor Law;
  • Is believed by their employer to have made such a complaint;
  • Pursued a NY Labor Law proceeding;
  • Testified or prepared to testify in a NY Labor Law investigation or proceeding; or
  • Been the subject of an adverse finding against their employer.

Employees do not have to reference the Labor Law or any of its specific provisions to qualify for protection from retaliation. But they must make reasonable, good faith allegations.

Existing Retaliation Prohibition

Before the amendment, Section 215 of the NY Labor Law protected employees from retaliation in the above situations. The protections are vague, but widespread. They prohibit employers from doing any of the following to an employee based on protected activity:

  • Discharging;
  • Threatening;
  • Penalizing; or
  • “In any other manner” discriminating or retaliating against a protected employee.

New Immigration Retaliation Protection

The immigration retaliation amendment adds unique specific clarification of the general prohibitions above.

The amendment provides that retaliation includes “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.”

These actions arguably already violated the existing anti-retaliation provisions of the NY Labor Law. But this amendment provides clear guidance to employers not to pursue this path in response to protected activity.

What Does This Mean for New York Employers?

From a retaliation law perspective, this amendment is not groundbreaking. Threatening to report an employee to immigration authorities to deter complaints about labor law violations was already a risky proposition. But that might not have been obvious to everyone. So this should be a clear lesson of how not to try to avoid liability for not paying minimum wages, overtime, or otherwise following the state labor laws.

However, this legislation does not mean that employers can never report employees to immigration authorities. You just can’t do it in response to protected activity. Employers already have an obligation through the federal I-9 form to ensure that their employees have the right to work in the U.S. Reporting individuals that falsify that status, for example, may be permissible. But you should consult with an employment and/or immigration lawyer before doing so.

 

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