Obama Nominee Finds Himself in I-9 Hot Water

A recent Washington Post report has succeeded in highlighting one of the more confusing compliance requirements for small business owners: the I-9 verification. It seems that Alan Bersin, the Administration’s nominee for (and current recess-appointed) Commissioner of Customs and Border Protection, the agency charged with protecting the nation’s borders, has failed to complete I-9s for the eight or nine household workers he has employed over the last eight years. According to the Washington Post, Acting CBP Commissioner Bersin was unfamiliar with the Form I-9 and his need to complete them as an employer. If the official responsible for protecting our borders (who is also a former “Border Czar” and U.S. Attorney) cannot fulfill his own I-9 obligations, does a small business owner stand a chance?

The I-9 or Employment Eligibility Verification Form is a requirement of the Department of Homeland Security’s U.S. Citizenship and Immigration Services. Employers must use it to verify an employee’s identity and to establish that the worker is eligible to accept employment in the country.

While the Commissioner’s failure to complete required I-9’s does not leave him open to risks such as a DHS raid, I-9 audit, or criminal investigation, a  business owner may not be so lucky. At the recent Jackson Lewis 20th Corporate Counsel Conference, an agent from U.S. Immigration and Customs Enforcement (“ICE”) said that in 2010 ICE will double the number of I-9 audits it conducted last year. The agent noted that approximately 33 percent of employers targeted in last year’s I-9 audits were found not in compliance and they were all sanctioned. The good news is that the majority of the employers targeted understood (or had good legal advisors) and were able to follow to the requirements.   These employers likely expended tremendous time and resources to get their I-9 files in order and to reply to the audit notices.

The Commissioner’s situation is instructive and should be another call to fix the I-9 process.  Common sense (not DHS handbook consisting of more than 80 pages to explain the one-page Form I-9) should control. When even President Barack Obama’s nominee cannot make out his I-9 obligations, we all have a problem. 

The government’s declarations of more enforcement and I-9 audits and threats of astronomical fines may make good politics, but they are no help to the honest businessman.   Education and simplification of the verification process would be welcomed. This does not require new laws and immigration reform. It’s all about forms and regulations. Add some common sense  and we might just get somewhere. Commissioner Bersin would probably agree.

Victor X. Cerda of our Washington, D.C. Region office authored this article.