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American Bar Association - Defending Liberty, Pursuing Justice

 

Vol. 15, No. 3

EMPLOYMENT LAW

Features

 

New I-9
Requirements and E-Verify

In 1986, Congress passed new U.S. immigration laws and began requiring all employers to verify the identity and employment eligibility of each new hire by completing and retaining an I-9 form for each employee. The U.S. Citizenship and Immigration Services (USCIS) has recently revised the I-9 in compliance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which mandated a reduction in the number of documents that employers may accept from newly hired employees during the I-9 process. Now USCIS has further reduced the number of acceptable documents and has revised the I-9 to bring it into compliance with the Act.
           
In a further effort to reduce unauthorized employment in the United States, the E-Verify system was introduced by the federal government in 1997 as a voluntary program. At present, E-Verify is now required for all employers holding federal contracts and some other participants in other federal programs. Several states also require some or all of its employers to participate in the program. According to some critics, the program is seriously flawed, primarily because of its reliance on government databases that have unacceptably high error rates that misidentify work-authorized individuals as not employment-eligible and because employers misuse of the program to take unjustified adverse action against workers. These database errors have a disproportionate impact on foreign-born U.S. citizens, with almost 10 percent initially being told that they are not authorized to work (versus 0.1 percent for native-born U.S. citizens).

The amended I-9 form informs employees that providing their Social Security number is voluntary, pursuant to section 7 of the Privacy Act (8 U.S.C. 552a(note)). However, for an employer to participate in the E-Verify employment eligibility verification program overseen by the Social Security Administration, employees must still provide their Social Security number, bringing into question the very substance of that change.

Participation in E-Verify does not provide protection from worksite enforcement, but an employer who uses the system is presumed to have not knowingly hired an unauthorized alien, a criminal and civil offense. Participants sign a MOU, which permits government agents to review the employer’s files and interview employees without a warrant, and while the employer may be protected from government action if E-Verify confirms an otherwise unauthorized employee, participation in the program does not shield the employer from actions by an improperly dismissed employee as a result of a incorrect non-confirmation.

Suzanne Brown is the principal attorney in the Law Offices of Suzanne Brown P.C. in St. Louis, MO, where she practices immigration law. Contact her at suzanneb@immigration-firm.com or visit her Web site at www.immigration-firm.com/index.html.

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