Form I-9, the Employment Eligibility Verification employers
must complete for all newly hired individuals, is such a simple looking two-sided
form, yet there seems to be no end to the complications that it causes
employers and employees alike. A recent
court decision illustrates just how problematic Form I-9s can be, where the
court used an employee’s misrepresentations on the form years later to prevent
him from becoming a lawful permanent resident.
As a consequence, the individual was subject to deportation and the
employer lost an employee.
The individual in question applied to become a permanent
resident after marrying a U.S. citizen.
However, when filling out I-9s at his various jobs, he always checked a
box indicating that he was “a citizen or national of the United States.” He testified that he wanted his employers to
think he was a citizen, because he believed he would lose his job if he was not
a citizen. An individual is inadmissible
to the United States, and ineligible to become a permanent resident if he
falsely represents himself as a citizen of the United States for any purpose or
benefit under the Immigration and Nationality Act. Although an individual is not
inadmissible for falsely representing himself as a national, the court determined,
based on his testimony that he was intending to represent himself as a citizen,
not a national, by checking that box.
The Immigration Reform and Control Act of 1986 (IRCA) makes
it illegal for most employers to discriminate against applicants or employees
based on citizenship or immigration status.
Therefore, if the individual was legally authorized to work, even if not
a citizen, his job should not have been in jeopardy. Because of this individual’s potential misunderstanding
of the law, he is no longer eligible to become a permanent resident, and his
employer is deprived of someone who may have been a valuable employee. To avoid such a situation employers should
make it clear to new hires that, although they will verify employment
eligibility (as they are legally required to do), they do not discriminate
based on citizenship (as they are legally prohibited from doing).
Questions? Contact Minnesota Attorneys at (952) 746-1700 or
email chbeggan@wesselssherman.com
to arrange a consultation.
