Carl Shusterman, Managing Partner, Law Offices of Carl Shusterman

I have had occasion to write about I-9s in this space in the past, but the topic simply won’t go away. In fact, it is hotter than ever and so merits another look.

The I-9 is a document that must be completed for every employee a company hires. It verifies the identity and the employment authorization of each new hire and is part of the federal immigration regulatory process.

It’s not a bad idea for recruiters to know something about I-9s, because how they are completed and stored can affect the ultimate fate and impact of the talent recruiters help their companies or clients to acquire.

There was a time when the federal government paid relatively little attention to I-9s, but things have changed. The government now sees I-9s as a way to crack down on employers who hire undocumented workers. Consider some of the major I-9 related fines the government has issued in recent years:

• Wal-Mart has paid $11 million in fines to the federal government in order to avoid criminal penalties.
• Golden State Fence Company paid $4.7 million in a plea bargain, allowing company executives to avoid criminal prosecution.
• Last year, Abercrombie and Fitch paid I-9 related penalties over $1 million, even though they used an electronic I-9 system purchased from a vendor.
• A large health care employer last year paid a fine of over $250,000, not because they hired undocumented workers, but because in seeking to comply with the law they asked for more paperwork from persons born abroad than from native-born U.S. citizens.
• The Chipotle restaurant chain now is being subjected to an ongoing criminal investigation, part of the Obama Administration’s increased use of I-9 audits.

I remember when President Reagan signed into law the Immigration Reform and Control Act of 1986, which established the I-9 requirement. I was recruited by a local California Congressman to give a series of seminars to employers in his district about their responsibilities under the new law. I warned them that they were walking a tightrope. The form was only one page long and looked very simple to complete. However, if they were not careful in completing, updating and storing their I-9s, they could be subject to civil fines. On the other hand, if employers tried to train their recruiters and HR managers to be junior immigration officers, they ran the risk of major fines for violating the document abuse and anti-discrimination provisions of the law.

Now, a quarter of a century later, the task of completing, updating and storing I-9 forms is exponentially more complex than it was. The U.S. Center for Immigration Services (USCIS) “Handbook for Employers” detailing I-9 requirements is over 60 pages, and the books immigration attorneys read on this subject are hundreds of pages long. There are many questions to consider: How do you complete the I-9 in a “portability” case? In a “cap-gap” case?  When there has been a merger or acquisition? Does it make sense to store I-9s manually or electronically? What are the advantages of using the E-Verify program?

Fortunately, there is some good news for recruiters and for the HR managers they work with when bringing in new talent. On May 23, the USCIS rolled out a very helpful online service for employers called “I-9 Central.” USCIS officials say I-9 Central is part of their ongoing effort to better serve the 7.5 million U.S. employers who use Form I-9 every time they hire an employee.   I-9 Central is a very clear and well-written resource that recruiters may wish to bring to the attention of their HR colleagues and to review themselves.  It is divided into the following topics:

• What’s New
• Clear and Correct
• Accepted Documents
• Retain and Store
• Penalties
• About the Form
• Customs Support

I-9 Central brings some needed clarity to the I-9 process and can be accessed through a link on my firm’s web site at http://shusterman.com/employersimmigrationguide.html#4.

Using this service, and having I-9s reviewed by an attorney experienced in this area, is a good idea at a time when the enforcement climate is going from hot to sizzling.

Carl Shusterman served as a trial attorney with the U.S. Immigration and Naturalization Service (1976-82) and is principal of The Law Offices of Carl Shusterman, Los Angeles. He can be reached at carl@shusterman.com.