A recent decision by an Administrative Law Judge in the Department of Justice has confirmed what the government has been warning employers about since the E-Verify program started several years ago. As background, all employers have been required to fill out an I-9 form since 1986 to verify the identity and employment status for employees hired after 1987. The I-9 system is inherently flawed and basically a nightmare for employers, most of which try very diligently to comply with the legal requirements.
The E-Verify system was implemented employer to “assist” employer by providing a means for employers to verify the employment/immigration status for prospective employees. Unfortunately some employers who have enrolled in the E-Verify program assume that they are somehow protected during an ICE I-9 audit. Nothing could be further from the truth.
At a basic level there are two types of I-9 violations: technical violations such as no dates, signatures, etc. on the I-9 and substantive violations such as the employee’s failure to provide any documentation like a driver’s license and/or Social Security card.
The E-Verify system allows the employer to contact ICE and ask if an employee is legally in the US and/or has work authorization. However, E-Verify does absolve the employer of the responsibility to completely and accurately complete the I-9 form even if ICE confirms the prospective employee is legally in the US and can work legally. In fact, in many ways the E-Verify system takes away the “good faith” defense from employers who would normally not be in violation but for the information received from ICE.
The point of all this is that employers must be very careful and consistent when completing I-9s for all employees, even if they are registered in the E-Verify program. And since E-Verify will someday soon be mandatory for all employers in the US, it is best for everyone to watch these developments closely.
The case in question is US v. Golf International, 8 U.S.C. Section 1324a Proceeding; OCAHO Case No. 13A00074, March 26, 2014.