In May 2011, the US Citizenship & Immigration Service (USCIS) launched “I-9 Central,” a website devoted to all matters concerning Form I-9 Employee Authorization Eligibility Verification. The American Immigration Lawyers Association (AILA) recently forwarded to USCIS a comprehensive list of concerns with and suggested revisions for the website and workforce compliance policies and procedures.
Among several suggested changes, AILA recommended that USCIS provide a disclaimer explaining that the information on I-9 Central “constitute[s] general advice but not legal counsel.” I-9 Central provides simple instructions which often fail to provide the legal-nuanced details an employer “must carefully consider before deciding on the most suitable course of action.” For example, the website mandates that “if a new employee provides a document that does not reasonably appear to be genuine, the employer must reject that document and ask for other documents that satisfy the requirements of Form I-9.” However, the website does not address “complicated and competing obligations” with inter-agency policies or factors such as constructive knowledge of unauthorized workers or the basis upon which the employer suspects the document is fraudulent. Such details may also be necessary to comply not only with USCIS policies, but the policies of other agencies with a stake in workforce compliance (I-9s), i.e., U.S. Immigration and Customs Enforcement (USICE), Office of Special Counsel (OSC), Social Security Administration (SSA), or even a U.S. attorney. It is always recommended that an employer consult with an immigration attorney with knowledge of workforce compliance issues regarding I-9 Forms and workforce compliance when questions arise regarding internal procedures relevant to workforce compliance or even correcting clerical errors on I-9 Forms.
While not currently clarified on I-9 Central, USCIS confirmed recently that the “controlling document with regard to USCIS’s position and guidance for completion of the Form I-9 is the M-274 Handbook for Employers,” not the I-9 Central website or any other publically available materials on the subject. Therefore I-9 Central is only guidance, but not an authority on the completion and maintenance of the Form I-9. AILA suggested that USCIS emphasize this point in a “prominent notice” on the website and, perhaps, duplicate the exact language in the handbook with the corresponding information on each page of the website.
In addition, I-9 Central provides notice of updates and changes to the form and handbook through the “What’s New” link on the website. However, the What’s New webpage does not highlight the specific changes within the referenced documents. AILA suggested that USCIS underscore the specific changes to save employers the time and frustration of comparing previous versions of the form or handbook with the updated or changed material. Further, the association suggested providing a history of previously published material which would be available for employers to confirm compliance with the rules and procedures at the time a form was completed, especially when faced with a government audit. AILA also suggested that USCIS provide an option for employers to receive email alerts regarding changes to the website and material.
AILA also pointed out that some of the information on the website relevant to other agencies with a stake in workforce compliance, such as SSA or OSC, is inconsistent with “pronouncements” from those other agencies. AILA suggested that USCIS provide confirmation on the site that such information has been “vetted” by the relevant agency.
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