If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

If you look at IRCA, you will not see a word anywhere in the codified statute about E-Verify.  But look closer and you will find that E-Verify—and much of the detail in the MOU– is indeed a creature of statute, a statute that is alive and kicking, even if it is not codified.  Because Basic Pilot was designed as a voluntary, temporary experiment, it lives not in the U.S.C., but in the statute books alone. Take a look at the IIRAIRA legislation.  There, in Public Law 104-208, 110 Stat. 3009-655 through 3009-665, the law lays out clearly that participants in Basic Pilot must require a social security number of all new employees; it mandates the use of a picture identification document; it tells employers they are supposed to terminate an employee who fails confirmation.  Most telling of all, it appears to provide legal immunity to employers who rely in good faith on an E-Verify result:  “No person or entity participating in a pilot program shall be civilly or criminally liable under any law for any action taken in good faith reliance on information provided through the confirmation system.”  (Id., IIRAIRA, Section 403(d)(1996))

Does this mean an employer can never be sued for taking adverse action based on an E-Verify response?  The immunity has yet to be tested, so there is not yet a definitive answer.  But this is very strong and compelling language.  It certainly suggests that employers can safely rely on an E-Verify Final Non-Confirmation Notice in terminating an employee, even if the employee provided a complete and fully valid I-9, and further suggests that an employer who fails to terminate could well find itself called upon to defend against an ICE claim that it continued to employ an unauthorized alien.*  [Footnote:  Although E-Verify is run by USCIS, the E-Verify MOU makes it clear that E-Verify data can be shared throughout the DHS and employers should anticipate the likelihood that their E-Verify records will be accessed and reviewed.  The risk of ICE follow-up is enhanced, at least under the enforcement strategies of the Bush administration, by development of an E-Verify Compliance Unit, which will soon come on line to focus on E-Verify data and manage follow-up investigation in “appropriate circumstances.”   (See Statement of DHS Secretary Michael Chertoff before the House Judiciary Committee, March 5, 2008)]

            But what about over-documentation?

Employers are well-familiar with the principle that they are not to ask for “more or different” documents in the I-9 process than those properly offered by the employee as a List A or as List B and List C documents.  If they ask for more, they risk a discrimination charge for over-documentation under IRCA non-discrimination provisions, 8 U.S.C §1324b.  Does the IRCA discrimination exposure apply to an employer’s attempt to satisfy E-Verify requirements where, following the E-Verify MOU, the employer explicitly conditions employment on the employee’s providing a social security number and a photo ID?   Or, what about the situation where the I-9 is in perfect order, but E-Verify returns a Final Non-Confirmation notice?

Surprising as this may seem to experienced and savvy I-9 advisors, IRCA compliance is not an excuse for ignoring E-Verify obligations.  It bears emphasis that E-Verify has its own statutory authorization which is separate and different from the I-9 rules.   The fact that the employee has also completed a valid I-9 does not trump the legitimacy of the E-Verify inquiry—and does not impede the employer from taking adverse action proscribed by the E-Verify MOU.  The IIRAIRA language, backed up by the explicit immunity provision, serve to protect the employer from IRCA liability.

But what if the E-Verify statute did not trump the I-9 rules—would it be unlawful for an employer to require a social security number of all new hires, even though that is not necessary from an I-9 perspective?   Is that over-documentation under IRCA?

The source of the “over-documentation” prohibition is IRCA, 8 U.S.C.§1324b(a)(6).  In this regard, it is worth noting that the statute actually prohibits an employer from seeking more or different documents only “if…made for the purpose or with the intent of discriminating against an individual [protected by the Act]….”  In other words, the class of persons protected from over-documentation is coterminous with those who are already protected by the statute—citizens, green card holders who pursue citizenship within statutory time limitations, and persons granted refugee status or asylum. * [FOOTNOTE:  The statute also protects individuals granted temporary residence under Section 1160(a) or 1255a (a)(1) of the Act.  These provisions relate to certain agricultural workers and other entrants who entered the country before 1982.  Continued reference to these archaic provisions within the description of protected individuals confuses more than elucidates.]   The over-documentation prohibition does not extend to non-immigrants—or even to green card holders who choose not to pursue citizenship!

Moreover, since 1996 amendments to the IRCA non-discrimination provision, a prima facie case of document discrimination requires a showing of intentional discrimination.  The 1996 amendment was in specific response to earlier decisions that had developed a theory of unintentional “disparate impact” discrimination under IRCA.   Several cases adjudicated in the aftermath of IIRAIRA have made clear that the amended rule requires a showing of intentional discrimination.  (See e.g., U.S. v. Diversified Technology and Services, 9 OCAHO no.1095 (2003); Diaz v. Pacific Maritime Ass’n, 9 OCAHO no. 1108 (2004))

It is also worth noting that employers do no “over-document” when they have a reasonable suspicion about the authenticity of documents presented in the I-9 process or when those documents do not appear reasonably to relate to the individual presenting them.   Questioning the presentation in those circumstances is precisely the intent of the I-9 process.  That is why the employer representative who signs Section 2 of the I-9 form on behalf of the employer attests under penalty of perjury to the fact that the documents presented appear genuine and appear to relate to the individual submitting them.  So long as there is an objective reason to seek clarification, and so long as scrutiny is applied equally to all new employees and their documents, there is not an IRCA over-documentation violation.

Bonnie Gibson (licensed in California) is a partner in the Phoenix office of Fragomen, Del Rey, Bernsen & Loewy, LLP, one of the  largest business immigration legal practice in the world.  Bonnie (E-verify Lawyer) specializes in I-9, E-Verify and other immigration worksite compliance, drawing upon her 25 years experience in labor and employment law.  She also serves as the E-Verify chair for the American Immigration Lawyers Association Verification Liaison Committee. For more information about E-Verify or I-9 compliance,  contact Bonnie Gibson at bgibson (at) fragomen.com.

{ 0 comments }