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HR Spotlight - Developing I-9 Issues

Volume 2, Issue 1
January 17, 2003

A. Social Security Numbers

According to a recent report by the Social Security Administration (SSA), over 100,000 social security numbers were wrongly issued to non-citizens in 2000. Previously, "mismatch letters" were sent to an employer only if more than 10 percent of its employees did not match SSA records. As a result of the recent report, SSA now plans to send out 750,000 mismatch letters to employers over the coming year.

Likewise, the Internal Revenue Service (IRS) will begin penalizing employers who fail to verify the validity of employee social security numbers. According to the IRS, notices of proposed penalty, which are calculated at a maximum $50 per incorrect form, will be issued staring in June 2004 for 2002 W-2 forms.

However, in the event of receipt of a mismatch letter from the SSA, an employer should not automatically conclude that the subject employee does not have authorization to work in this country. A recent opinion by the General Counsel of the Immigration and Naturalization Service (INS) stated that "notice from SSA to an employer notifying it of a discrepancy between wage information and SSA records does not, by itself, put an employer on notice that an employee is not authorized to work." As such, an employer should be careful when validating social security numbers not to run afoul of the anti-discrimination provisions of the Immigration Reform and Control Act (IRCA), the statute that mandates that employment authorization be verified through the completion of the I-9 form.

If your company receives a mismatch letter from the SSA regarding a particular employee, an HR representative should first re-check the employee's I-9 form. If the employee did not use a social security number to validate his employment status and the documents which were provided appear valid, then the employer cannot be held liable under INS regulations for continuing to employ an unauthorized worker. However, if the wrong social security number does appear on the I-9 form, HR does need to inform the employee of the mismatch and ask the employee to resolve the discrepancy. Under INS regulations, an employer needs to allow an employee who has not provided acceptable documentation another opportunity to present documentation and complete, amend or note the I-9 accordingly. If the employee cannot provide this documentation, at least within three (3) days, then the employer should not continue to employ the person.

B. Revisions to the I-9 Form are Coming

The INS has been working on developing a new I-9 form to comply with a federal mandate issued during the Clinton Administration that all federal agencies streamline the amount of paperwork necessary to comply with federal regulations. In particular, the INS is working on streamlining the types of documents that are valid for use in the verification of employment authorization. The new I-9 form has not yet been completed; however, INS is now posting the document requirements on its website, and employers should begin to abide by them. The changes to valid documents are as follows:

  • Although not listed on the 11/21/91 version of the Form I-9, the new employment authorization document known as Form I-766 is an acceptable category #10 document under List A.

  • Under category #5 on List A, Form I-151 is no longer an acceptable document. However, Form I-551 remains an acceptable category #5 document.

  • The following documents have been removed from the list of acceptable identity and work authorization documents: Certificate of U.S. Citizenship (List A, category #2), Certificate of Naturalization (List A, category #3), Unexpired Reentry Permit (List A, category #8), and Unexpired Refugee Travel Document (List A, category #9).

According to INS representatives, the new requirements do not necessitate that an employer conduct an audit of all existing I-9 files. The above changes should be utilized for new hires only.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.