Immigration Service Investigating I-9 Forms from Past Employers for Current Adjustment of Status Applicants

With the start of the Employer’s Sanctions program in 1985, and the requirement that all employees complete form I-9 when starting new employment, the ways of “getting around” the I-9 form’s requirements have been numerous and creative. Now it seems the most obvious ways to gain employment with false information on the I-9 will be used to deny Adjustment of Status years after the form was completed.

The two most common ways of getting employment while bypassing the I-9 requirements are a false claim to US citizenship or nationality in part I of the form, at the top, along with a false social security number (SSN) used in part II, in the middle of the form. Along with a valid driver’s license, the prospective employer is put in the position of being forced to hire the applicant or face discrimination charges (those fraudulent acts also protected the employer from any Employer’s Sanctions violations, as long as the employer had no knowledge of the fraud).

If the applicant was even more clever, they would not make a false claim to US citizenship or nationality but indicate they were a permanent resident or non-immigrant authorized to work. That would require fraud and a fraudulent SSN, but the penalties are much less severe, as discussed below. In fact, when the employer is completing the I-9, the applicant cannot be questioned about the information the applicant puts in part I. Again, this also protects the employer from being fined for an I-9 violation on the issue of fraud.

For many years, the Immigration Service has not made it a policy of looking at current and past I-9s when adjudicating benefit requests years later. On occasion the Service might ask for I-9s from current and past employers in an Adjustment of Status case, but that was on a case-by-case basis. Now it appears the Service has instituted a more formal, comprehensive program of looking at I-9s  in most Adjustment of Status cases, as well as other petitions and applications where prior employment and work authorization could be an issue.

If the Service determines that the employee made a fraudulent statement in part I (other than US citizenship or nationality) or provided a false SSN in part II, the Adjustment of Status may be denied based on fraud. However, if there is a US citizen or permanent resident spouse or parent, a hardship waiver may be available. This is normally available in family cases. In employment cases, it is much more uncommon to find a qualifying relative for the waiver.

And, finally, if the applicant for employment states on part I of the I-9 that he or she is a US citizen or national, the Service will deny the Adjustment of Status but there is no waiver available. It is important to give this issue great consideration. If a violation like this has occurred, any attorney you discuss this with will not be able to represent you with the Immigration Service since he or she will know that a false claim was made. And that question is specifically on the I-485 ¬†Adjustment application. The attorney has a duty not to tell the Immigration Service anything the client says in confidence, but the attorney cannot allow the client to commit further fraud by stating that a false claim to US citizenship has never been made in the past. So, the attorney’s only recourse is to not represent the client in filing the I-485 or other petition/application.