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Compliance

Form I-9 and E-Verify Requirements

I. PURPOSE

Immigration laws pertaining to employment serve to “preserve[] the tradition of legal immigration while seeking to close the door to illegal entry.” Employment can often motivate illegal immigration; so, the law seeks to remove this magnet by requiring U.S. employers to verify employment eligibility using Form I-9 and to hire only individuals who may legally work in the United States. The electronic employment verification system (E-Verify) is used to improve the accuracy and integrity of this verification process.

II. HISTORY

In order to create a more structured organization of immigration law, Congress passed the Immigration and Nationality Act (INA) in 1952. The INA has been amended various times over the years. In 1986, the Immigration Reform and Control Act added the directive that employers use Form I-9 to verify the legal employment status of their employees.6 Ten years later, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which instituted the precursor to the E-Verify program known as the Basic Pilot Program.7 The Basic Pilot Program became E-Verify in 2007, which is now used to provide employers access to federal databases “to help employers confirm the employment authorization of new hires.” The Form I-9 is periodically updated by United States Customs and Immigration Services.

III. APPLICABILITY TO BYU–HAWAII

Federal law prohibiting the hiring and employment of unauthorized aliens applies to all U.S. persons or entities. Federal contractors whose contracts (a) exceed $250,000, (b) are for work performed inside of the United States, and (c) are for a period of performance of 120 days or more are also required to participate in E-Verify. Hawaii state law has no requirement to utilize e-verify; however, since BYU–Hawaii is an employer in the United States, the university must comply with federal regulations regarding the hiring of unauthorized aliens and use the Form I-9. Participation in the E-Verify program may likewise be required by certain federal contracts entered into by BYU–Hawaii.

IV. REQUIREMENTS

An employer may not “hire, recruit, or refer for employment in the United States an alien knowing the alien is an unauthorized alien[.]” An “unauthorized alien” is a person without U.S. citizenship or nationality who is either not “lawfully admitted for permanent residence or authorized to be . . . employed.” If an employer discovers after lawfully hiring an alien that the alien is or has become unauthorized, then the employer may not continue to employ the alien.

Employment Verification System and Records

The employer must verify that the employee is authorized to be employed in the United States by ensuring that the employee fills out and signs section 1 of Form I-9, examining the appropriate documentation to establish identity and work authorization, and completing section two of Form I-9. The employer must sign the form attesting, under penalty of perjury, that he or she has examined the documentation and verified that it is genuine and relates to the individual.

Physical examination of an employee’s documentation and completion of Form I-9 must occur “within three business days of the hire.” Although the form does not need to be filed with any government agency, the employer must keep the a copy of the original signed form for three years after the date of hiring or one year after termination of employment, whichever is later.19 Copies of I-9 forms may be kept electronically. If requested by an authorized U.S. agency, an employer has three business days to make copies of their I-9 forms available for inspection.

If an employee’s employment authorization or supporting documentation expires, the employer “must reverify on the Form I-9 to reflect that the individual is still authorized to work in the United States” before the expiration. Additionally, reverification is required when an employee is rehired; however, with rehires, the employer may inspect and update the previous I-9 Form, unless more than three years have passed since the employee’s Form I-9 was originally executed. For employees rehired three years or more after completing the Form I-9, a new form is required.

Compliance with the requirements regarding the hiring of aliens has been met by a good faith attempt to comply.

Improper Actions Regarding Form I-9
The Form I-9 and any information attached or contained therein may not be used for purposes other than verifying authorization for employment in the United States. Additionally, an employer may not request more or different documentation than what is required for the purpose of discriminating.

It is an unfair immigration-related employment practice to discriminate against any individual (other than an unauthorized alien) with respect to hiring or firing because of an individual’s national origin or individual citizenship status (in the case of U.S. citizens or permanent residents). Intimidation, threats, or retaliation is considered a form of retaliation. Even so, an employer may discriminate if the employer has three or fewer employees; if the discrimination is permissible under section 703 of the Civil Rights Act of 1964; or if citizenship status is essential for an employer to comply with law, regulation, executive order, or federal contract. Qualified citizens may be preferred to equally qualified aliens.

Employers cannot require an individual to provide a financial guarantee or indemnity against any potential liability arising from hiring the individual.

E-Verify

Certain federal contractors are required to use E-Verify for all new hires. Institutions of higher education with contracts requiring enrollment in E-Verify “may choose to verify only new hires assigned to the contract.”

When an employer enrolls in E-Verify, that employer must sign a Memorandum of Understanding (MOU) indicating that the employer will comply with certain policies and procedures. Specifically, an employer agrees to do the following:

  • Display notices of E-Verify participation and right to work
  • Provide to the Social Security Administration and Department of Homeland Security the contact information of employer representatives to be contacted about E-Verify
  • Comply with current Form I-9 procedures, including those found in the E-Verify User Manual
  • Not use E-Verify for pre-employment screening of job applicants
  • Use E-Verify for all new employees, and not selectively
  • Comply with Title VII of the Civil Rights Act of 1964 and not discriminate “unlawfully against any individual in hiring, firing, employment eligibility verification, or recruitment or referral practices because of his or her national origin or citizenship status”
  • Safeguard information it receives from E-Verify43
  • Use E-Verify only to confirm employment eligibility44
  • Notify DHS immediately when there is a breach of E-Verify personal data45

V. PENALTIES

Violation of the laws and regulations regarding Form I-9 employment verification may result in a civil penalty ranging from $224 to $2,236 for each individual/form. Additionally, an employer who knowingly hires or employs an unauthorized alien can be fined up to $4,473 per person for a single offense and up to $22,363 for a third or subsequent offense. If “the Attorney General has reasonable cause to believe” there is a pattern or practice of employment violations, the Attorney General may bring a civil action and request an injunction or order against the employer. Criminal penalties will also be imposed if there is a pattern or practice of violations.

Federal contractors found to be noncompliant with the INA employment provisions may be debarred for one year or longer if violations continue.