Poyner Spruill LLP

​In the past three months, there have been four settlements with three staffing agencies and one private company reported by the Department of Justice.  The three settlements with staffing agencies resolved allegations that the staffing agencies discriminated against non-US citizens in violation of the Immigration and Nationality Act (INA).  The Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices is responsible for enforcing anti-discrimination provisions of the INA.

The Office of Special Counsel found a pattern and practice at all three staffing agencies of requesting specific immigration documents for Form I-9 and E-Verify purposes for noncitizens, but allowing US citizens to show what they wanted from the list of acceptable documents. To remind, federal law requires that every employer and agricultural recruiter/referrer-for-a-fee, or recruiter/referrer-for-a-fee, hiring an individual for employment in the United States, complete an Employment Eligibility Verification Form, which is the Form I-9.  This form verifies both an employee's identity and employment authorization.  Specifically, two of the three agencies were requiring that job applicants show a US birth certificate.  One staffing company’s job posting published on several job search engine websites required a US birth certificate. Hartz Mountain Industries, the employer who settled with the Department of Justice also required proof of US citizenship status in its job postings.

The amount of the fines in settlement were $175,000, $153,000, $1,400 and $1,200 respectively and all four companies will now be monitored by the Department of Justice and undergo a periodic review of their hiring processes. 

Only a current Form I-9 is acceptable.  On 8/25/16, the Office of Management and Budget approved a revised Form I-9 to be published by 11/22/16. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013, but after 01/21/2017, all previous versions of Form I-9 will be invalid.  It is therefore critically important not to print out a stack of I-9s for future use.  Instead, always go here to print out the latest edition. 

When completing Form I-9, an employer should ensure that:

  • The current version of the Form I-9 is used.
  • The information on the form is clear and legible.
  • All applicable sections of the form are complete.
  • The date entered in Section 2 as the date the employee commenced employment matches the date in payroll records.
  • Copies of the documentation retained with the I-9 are legible, if copies of documentation are made the employer has a choice as to whether or not to copy documentation, and this policy must be applied uniformly).
  • The English version of the form is completed unless the form is being completed in Puerto Rico. (Spanish version is approved for use only in Puerto Rico.)
  • If an employee is working in a remote location where there is no authorized representative to review the employee’s documentation and complete the I-9, a designated foreman, agent or even notary public may act as agent and complete the I-9 on behalf of the employer.  No specific agreement between the parties is required.  The employer remains liable for any violations in connection with the form and the document verification process.
  • The authorized representative or agent must physically examine each document presented to determine if it reasonably appears to be genuine and relates to the employee presenting it.
  • Examining documents via webcam for I-9 purposes is prohibited.
  • If employer finds a mistake or omission made by an authorized representative or agent, the employer cannot supply a missing certification signature and certification date: this must be done by the person that originally completed the employer section of the I-9.  If there are errors or omissions pertaining to the documents listed that were physically examined, the employer may make corrections if copies of the documents are attached to the I-9.  If copies of the documentation are not attached, a new I-9 must be completed.  A signed and dated note by an authorized representative or agent should be attached regarding the changes made to an existing I-9, explaining why a new I-9 was completed. 
  • Keep track of any expiring employment authorization documents an employee has shown to prove both identity and employment eligibility.  Unfortunately, an employer cannot rely upon the employee.  Advise the employee six months before such expiration that he/she will need to provide new documentation when that employment authorization expires.
  • Train all authorized representatives and agents on how and when to complete the I-9 and require an annual internal audit of I-9s to be sure they are complete and accurate.