On June 15, 2012, the Obama Administration announced that certain individuals who came to the United States as children, and met certain criteria, would be eligible for temporary resident status through Deferred Action for Childhood Arrivals. The most important provision was that deferred action allowed these individuals to obtain work authorization, including a valid Social Security number and, in many states, a driver’s license. This means many individuals who were once working under a different name with invalid Social Security numbers now have a valid number. What should a company do when one such employee, “Juan,” comes in to work one day and provides a new social security card and driver’s license indicating his name is actually “Carlos?”
My firm has developed a protocol to help our clients deal with these types of situations. We advise our clients to follow a four-step process, which we call the NCIS protocol — short for New Confessed Identity Scenarios. We developed this protocol to provide our clients a simple, responsive and compliant way to address this sensitive scenario.
The first step is to evaluate the company policies addressing false information on job applications, employee dishonesty and fraud. We advise against strict policies that have automatic repercussions for this scenario. Instead, we advise companies to keep a policy that empowers managers to evaluate each scenario. You should also be familiar with your state’s retaliation laws. For example, an employer in California cannot terminate an employee for attempting to update his or her I-9.
The second step is to prepare and complete new I-9 Forms in the same manner as any new hire even though the employee is not considered a new hire. The company should ensure that the employee’s original date of hire is noted on the previous I-9, retain the previously completed I-9 and keep it with the newly completed I-9.
The third step is to document the reason for the newly confessed identity scenario (i.e., obtained work authorization through deferred action). The company can contact a law firm familiar with I-9 compliance work to help create a documentation template.
The final step is to notify the employee that he or she is responsible for ensuring compliance with applicable tax regulations.
Employers faced with immigration compliance issues should always seek individualized legal help. What may seem like a small issue can sometimes turn into a substantial legal liability. This four-step process provides a foundation for dealing with this particular problem, but it should not substitute individualized advice.
As immigration reform takes center stage in politics, new rules and regulations are likely to be issued. A best practice is to stay informed and consult a legal professional to help your business navigate the complex matter of immigration in the workplace.
Jacob Monty is the founder and managing partner of Monty & Ramirez LLP. Monty specializes in labor and immigration matters and assists employers throughout the United States. To contact Monty, e-mail him at firstname.lastname@example.org.