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November-December 2013

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NAVIGATE RESOURCES: Table of Contents InfoNet aila.org Find a Member ? ! Contact a Mentor Shop Agora FOR MORE ON I-9s: verification process contains numerous traps for even the most conscientious employer. The re-verification rules are tricky and counterintuitive. It may help to think of the anti-discrimination provisions as controlling the "how" of the Form I-9 process; whereas ensuring the employee is authorized to work is the "what" of the process. Employers must walk a fine line between ensuring employee work authorization while avoiding discrimination against any employee based on his or her immigration status or national origin. For example, an employer might mistakenly believe lawful permanent residents must be re-verified because their work authorization document (typically a green card) includes an expiration date. However, for most lawful permanent residents, re-verification is not permitted. Similarly, employees with temporary protected status (TPS) may have initially presented an employment authorization card with an expiration date, yet often times, TPS status is extended automatically via publication in the Federal Register, even though the employee does not receive an updated employment authorization card. In addition to re-verifying employees whom the employer is not permitted to re-verify, Macy's may have violated the anti-discrimination provisions by the manner in which it performed the re-verification itself. For example, an overzealous employer may require that all employees with temporary work authorization present an employment authorization card as their form of identification and proof of work authorization for Form I-9 purposes. To the untrained human resources associate, this process may seem innocuous. Not so fast! Requiring certain employees to present particular documents during the Form I-9 process may violate the Immigration and Nationality Act's anti-discrimination provisions. Unfortunately, many electronic I-9 systems don't understand the "how" of the Form I-9 process. A I-9 Seminar Series Recordings Combo Purchase > Late Breaking Seminar: The New Form I-9 and How It Affects You (Recording) Purchase > Dotting the I's and Crossing the T's of I-9 Compliance (AC Recording) Purchase > AILA's Guide to Worksite Enforcement and Corporate Compliance Handbook Purchase > number of sophisticated employers have patted themselves on the back for implementing the "best" electronic I-9 system, only to find that their system is woefully inadequate in meeting the complex requirements of the Form I-9 process. The Macy's settlement agreement indicates that its electronic system may fall into this category. There is no substitute for a well-designed process, comprehensive training, and an internal audit system designed to catch and appropriately remediate errors before they become the subject of a government investigation. Christine D. Mehfoud is a director at Spotts Fain PC in Richmond. The author's views do not necessarily represent the views of AILA nor do they constitute legal advice or representation. N OVEMBER/ DO CTOBER 2013 S EPTEMBER/ ECEMBER 13

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