As an employer, you want to do the right thing, right?
Of course. We all do.
And we’ve all been told over and over that we need to have our employees complete I-9 forms to be able to prove they have employment authorization. The good news is that most employers are completing I-9 forms for their employees. The message is getting through. But just having a form completed isn’t enough. It also must be accurate and complete (and needs to have been completed at the proper time).
So, what happens when your favorite employee can’t complete an I-9, because they don’t have current work authorization?
Think about it. If it hasn’t already happened, it probably will, given that USCIS is increasingly backlogged in processing employment authorization applications. Perhaps your favorite employee had work authorization but their renewal form is taking longer than it should, and they’ve promised you it will be approved very very soon.
You might be tempted to look the other way. That approach might sound reasonable, but this post is an attempt to convince you not to do that.
Full disclosure: as an Immigration attorney in Kansas City I regularly represent employees who are already out of status and looking for solutions. I am often asked by clients if they can work even though they lack employment authorization. I try to explain the legal implications of working without permission, but the implications for the employer are usually very different. There are a number of reasons for this difference as I’ve outlined below. But whatever the reason, it is critical to understand that this difference easily puts your interests at odds with your employees’.
1. The Purpose of the I-9 Form
Before getting into the purpose of this post (why your employees will throw you under the bus), it is critical to understand why the I-9 form exists at all. The Immigration Reform and Control Act of 1986 (IRCA) required most U.S. employers to verify that their employees present “facially valid” documentation proving their and authorization to work in the United States. The I-9 form was created by the federal government for employers to comply with this requirement.
Employees must complete Section 1 (the top of the Form) when they start working. As this image from Gerald Goulder’s helpful post on filling out the I-9 form shows, Section 1 is the employee’s identifying information and their basis for employment authorization.
The employer must complete Section 2 within three days of starting work. As Gerald Goulder’s helpful graphic shows, the second section is the employer’s space to demonstrate that they actually examined the employee’s documents and that the documents at least appear to be valid.
So, that’s the I-9 form. In most cases it’s easy to fill out because your employees will have documents proving they have employment authorization. But what about cases where your employee doesn’t have facially valid documents (and thus wants you to look the other way)?
2. The Consequences of Employing a Person Who Lacks Employment Authorization
As you should expect, if an employer intentionally breaks the law there will be consequences. And no matter how much you like your favorite employee, continuing to employ them if they lack employment authorization is a violation of federal law. So how bad can it be?
But, again, we’re not talking about accidents here. An employer isn’t required to also be a forensic scientist. If your employee decides to submit fraudulent documents and you don’t catch them, the law is clear that you are supposed to be given a chance to correct the mistake (and it is your employee, not you, who will face federal criminal charges for fraud).
In the case we’re talking about here, you’ve looked the other direction on purpose because your employee has no employment authorization and you don’t want to fire them. In those cases, if ICE decides you’ve intentionally violated the I-9 rules, you’ll be required to (1) cease the unlawful activity (i.e. fire your favorite employee), (2) pay a civil fine, and (3) possibly face criminal prosecution. You can also be subject to debarment by ICE, which will mean that you cannot participate in future federal contracts or receive certain government benefits.
The monetary penalties for knowingly hiring and continuing to employ an unauthorized immigrant range from $375 to $16,000 per violation (repeat offenders receiving penalties at the higher end). The penalty process starts with an audit and typically ends with a Notice of Intent to Fine (NIF). Here is a flow chart of the penalties process:
ICE uses a formula to determine the amount of fines, but they can be steep, especially if you have a lot of employees.
3. So, Why Not Look the Other Way?
By now I hope the answer to this question is already clear – looking the other way is a violation of federal law and your employee will most definitely throw you under the bus. Not convinced? Consider two hypothetical scenarios I see in my office regularly:
A. The employee in removal proceedings.
Let’s say your employee is in removal proceedings and is trying to find a way to stay in the United States. She might have a visa that’s been filed by her family member or an employment based petition. But these plans will be shattered if she has previously made a false claim to U.S. citizenship for a purpose or benefit under federal law. Some courts have said this includes checking the “citizen” box on an I-9 form. So looking at your employee’s old I-9 forms often becomes critical in determining what, if anything, they’re eligible for. If your employee is found to have intentionally made a false claim to citizenship the penalty can be deportation and lifetime banishment.
So what is your employee going to do? She’s going to throw you under the bus. No matter how generous and friendly your intentions were, if you helped your employee work without permission by fudging her I-9 form, she may argue in Immigration Court that you, the employer, are to blame. One way your employee may do this is to prove that you filled out Section 1 (which is supposed to be filled out by the employee). If she can prove this, she may have saved herself a lifetime of inadmissibility, but of course the trade-off is that her employer will be in trouble. Don’t be that employer. You can prevent this by not looking the other way or fudging your employee’s I-9 forms.
B. Employee charged in federal court.
An even more difficult scenario is the employee who is criminally charged in federal court for lying on their I-9 form or using fake documents. In these cases your employee is usually going to be considered a “little fish” – the prosecutor in federal court wants to prosecute big fish and, under the threat of criminal prosecution, is going to lean on your employee to give up information on others who are breaking the law (that’s you). The prosecutor may offer to go easy on your employee if she just reveals what she knows.
So, what’s she going to do? You guessed it. It doesn’t matter that you two were good friends and you were doing something nice for your cherished, most-favorite employee. Faced with criminal charges she is going to think of her own interests and throw you under the bus.
As I said, I tend to represent employees far more often than employers, so I’m usually in the position of trying to help my clients find solutions after they’re already in trouble. But one thing I keep seeing over and over is employers who have fudged their employees’ I-9 forms by completing Section 1 or leaving it blank so their favorite employees can continue to work.
I had a case last week where the employer told my client to leave the I-9 form blank and then the employer finished filling it out. My client is charged in immigration court with lying on his I-9 form. Thankfully, the records were clear enough that he was able to prove in court that his employer was to blame. But in many cases the documents aren’t as clear, and employers have gotten my clients in trouble by helping them fill out an I-9 form and checking the “citizen” box.
I don’t represent their employers so it’s not my job to give them a lecture about following the law. I assume they have their own lawyer to do that. But what i would tell them if I could is that this charade is usually worse for the employer. In fact, as long as my client didn’t intentionally lie on his forms, the consequences for my clients are far less serious than the consequence for their employer. The monetary penalty and the possibility of criminal prosecution isn’t worth it. Don’t look the other way or fudge your employees’ I-9 forms. Because if your employee ends up in trouble, you can bet that same employee is going to throw you under the bus.