New Form I-9, DACA, and I-9 Liability
We bring you a few succinct updates today, which are a reminder to all employers of the importance of I-9 and worker authorization compliance, as well as compliance with anti-discrimination laws, which prohibit discrimination on the basis of citizenship and national origin. Now is the time to focus on these issues and revisit your own policies and processes to ensure they are compliant.
New Form I-9
U.S. Citizenship and Immigration Services (USCIS) has, yet again, released a revised Form I-9 for employment eligibility verification. The updated Form I-9 (with a revision date of “07/17/17 N”) is effective September 18, 2017 — so, make sure you start using it by that date.
You have probably heard that President Donald Trump has announced that the federal Deferred Action for Childhood Arrivals (DACA) program will be phased out over the next 6 months. So you know that DACA is being rescinded, but what does that mean for you right now?
Right now, employers should continue to monitor developments surrounding DACA, but must continue consistently applying their workplace policies and complying with existing Form I-9 and worker authorization requirements. The Equal Employment Opportunity Commission (EEOC) remains focused on enforcing laws that prohibit national origin discrimination (Title VII of the Civil Rights Act of 1964), and midway through 2017, EEOC actions were up by as much as 50%. Employers must keep this in mind when grappling with the practical impacts of immigration policy changes, such as the elimination of DACA. In light of the recent announcement, employers should monitor any further developments surrounding DACA, but must continue to treat all qualified workers consistently. Importantly, employers remain prohibited from refusing otherwise valid employment authorization documents simply because they are temporary or the employer suspects the employees may be DACA registrants whose work eligibility may expire.
Also, a newly decided case highlights the need for proper training on I-9 compliance. In the case, the Ninth Circuit affirmed a fine of $300,000 against an employer based on failures to properly complete I-9 paperwork. The employer’s HR director, who was hired to help see the company through a period of growth, failed to properly complete and file the required Form I-9s. USCIS filed an action against the employer, and an administrative law judge ordered the employer to pay $305,050 in penalties for the violations. The employer appealed the judge’s decision and argued that it acted in good faith by hiring an HR director to oversee the I-9 process. However, the Ninth Circuit held that the employer was liable for the HR director’s missteps and kept the penalties in place.
Ciana Williams, Esq., SPHR
MidAtlantic Employers’ Association
*This Alert is provided for general informational purposes only and does not constitute legal advice.