Obama’s Executive Actions on Immigration – Potential Problems in I-9 Compliance

Although most individuals and immigration lawyers, study President Obama’s Executive Actions on Immigration to determine what individuals will be eligible for relief, we need to think about potential I-9 compliance issues which may arise with millions of individuals receiving employment authorization documents (EADs) for the first time through expanded DACA and the new Deferred Action for Parental Accountability (DAPA) program.

The largest potential issue is where a current employee receives an EAD but previously he provided fraudulent documentation, such as a fraudulent permanent resident card, EAD, or Social Security card, to his employer.  That employee then presents a new and valid EAD to the HR manager and confides the prior documentation was fraudulent. What should an employer do in this situation? Much depends on your company’s policy on presenting fraudulent documents or lying on a company or government document.

There are several options. The first is to accept the new EAD, have a new I-9 form filled out and attach the old I-9 form to the new one with an explanation of the circumstances of completing the new I-9 form. If your company has a policy or practice of copying the underlying documentation, or is required to under state law, the new EAD should be copied. This option should only be utilized if your company does not have a policy or practice of automatic termination for presenting fraudulent documents or lying on a company or government document.

A second option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company document. Thus, the employee is going to be terminated. However, if the company does not have a policy prohibiting their re-hire, the company may offer to re-hire the employee and fill out a new I-9 form with an explanation of the circumstances.

The third option is to inform the employee that your company has a policy prohibiting employment of employees who have presented fraudulent documents or lied on a company or government document and that employee is not eligible for rehire. Thus, the employee must be terminated without a chance of rehire. This action is particularly harsh but may be the only way for an employer to go if it wants to remain consistent with its policy.

The option that a company chooses will be dictated by your company’s policy and practice. If you don’t have a policy concerning employment of employees who have presented fraudulent documents or lied on a company document, it is time to start thinking about getting one. Consult with a qualified immigration compliance attorney to develop an I-9 policy that addresses these matters and best practices.

A second concern is a reminder on how employers should treat EADs.  For some employers, the EAD may be a document that they rarely see.  The four largest groups who receive an EAD are individuals on TPS or OPT, asylees (for the first year of asylum), and individuals who have pending adjustment of status cases.  Thus, it is important to remember several things about an EAD.

First, it is a List A document, if it has a photograph on it. Thus, one should not ask for a driver’s license or Social Security card to accompany the EAD card.  Second, in Section 1, the employee must list the expiration date of the EAD and their A number or I-94 Admission number next to the box – “Alien authorized to work”

Additionally, EADs expire within two years of the issuance.  Thus, employers should have a tickler system to remind employees, at least 120 days before an EAD’s expiration, of their need to renew their work authorization or provide other documentation concerning their work authorization. (Employees who received EADs during their adjustment of status process will likely have a permanent resident card or can provide an unrestricted social security card.)

If you keep these points in mind, you will have less I-9 compliance issues, at least as it relates to EADs.