US Citizenship and Immigration Services (USCIS) has issued Guidance for Employer for recipients of Deferred Action for Childhood Arrivals (DACA). It’s a nice resource for employers, although not entirely accurate. I don’t have any concerns with the Guidance for Employers of Newly Hired Employees and in fact they provide an example of an Employment Authorization Document (EAD) which an employer is likely to see when completing the Employment Eligibility Verification form (form I-9).
Where I have an issue with the advice USCIS provides is in the section entitled Guidance for Employers of Existing Employees.
- First, it’s not as easy as completing a new form I-9 for an existing employee if they present themselves as a new person (i.e., new name or social security number) because an employer has to consider what consequences may exist under their “honesty policy”, assuming they have one. If an employee was Puss-in-Boots on Tuesday and Shrek on Wednesday, something is wrong and the employee lied. Misrepresentations such as that typically require some form of action under a company’s honesty policy.
- Second, if an employer participates in E-Verify, you cannot run existing employees through the system unless you are a FAR contractor. I’m not sure under what authority USCIS states in this guidance that “where the employer completes an entirely new Form I-9, an employer participating in E-Verify should verify the new Form I-9 information through E-Verify.” Just because USCIS is OK with this sudden change in identity and seems to gloss over a company’s honesty policy, doesn’t mean Puss-in-Boots/Shrek isn’t still an existing employee. The E-Verify MOU spells out that E-Verify is for new employees/hires and it is not to be used for pre-employment screening, in support of unlawful employment practices or any other use not authorized by the MOU.
Visually the USCIS Guidance for Employer is a nice piece and it’s helpful when they put such materials out so employers have guidance. However, I would caution those who rely on this guidance to attach a copy of it to each form I-9 completed pursuant to its instructions. Why? Because when ICE or the E-Verify Division says you did something you shouldn’t have, at least you will be able to point to the guidance. Also, I would highly recommend that for situations where you are dealing with existing employees, work with immigration counsel to address the handling of such forms I-9 and don’t rely only on this guidance.