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

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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.


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Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Siskind Susser, P.C., where he primarily represents employers in all aspects of immigration law, with a special emphasis on employer immigration compliance, as well as employment/labor law matters.  Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982. He served as senior trial specialist for the National Labor Relations Board for 20 years before going into private practice in 2003.  Mr. Buchanan has also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law.


Mr. Buchanan is a guest blogger on employer immigration compliance issues for LawLogix, located at http://www.lawlogix.com/blog?type=Electronic%20I-9 and writes a blog or article on similar issues for ilw.com, located at www.EmployerImmigration.com, and HR Professionals Magazine. He is also the editor of the Tennessee Bar Association's Immigration Law Section Newsletter and Labor & Employment Law Newsletter.   


Mr. Buchanan is Chair of the TBA's Immigration Law Section. He serves on the American Immigration Lawyers Association’s National Verification Liaison Committee. Mr. Buchanan also serves on the Board of Directors of the United Cerebral Palsy of Middle Tennessee. He is a member of the Middle Tennessee Chapter of SHRM, SHRM – Atlanta, and the Associated General Contractors – Middle Tennessee Branch. 












This post originally appeared on LawLogix on December 16, 2014. Reprinted with permission






About The Author








Bruce E. Buchanan

Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna cum laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors. Mr. Buchanan is admitted to practice in Tennessee, Florida, and Arkansas, before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuits and the U.S. District Courts for the Middle District of Tennessee and the Eastern and Western Districts of Arkansas.









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