USCIS recently released a new version of Form I-9 (edition date 7/17/17). The I-9 is a form used by employers to verify the identity and employment authorization of anybody hired for employment, whether a US Citizen or not. The form is comprised of two parts: one which must be completed by the employee in which he or she attests to his/her employment authorization; and one by the employer who has certified that a review of certain documents pertaining to identity and work eligibility was conducted.
Work Authorization and Immigration
What in the world does an employment form have to do with immigration? Quite a lot, especially these days when there has been such an emphasis on enforcement. On the I-9, the individual must attest, under penalty of perjury, that he or she is either:
•· A citizen of the United States
•· A noncitizen national of the United States
•· A lawful permanent resident
•· An alien authorized to work
Filling out this form accurately is of critical importance because a misrepresentation as to one’s status could have severe ramifications. In particular, a foreign national who falsely indicates that he/she is a US Citizen-when, in fact, he/she is not-could be charged with making a false claim to US Citizenship.
False Claim to U.S. Citizenship
Making a false claim to US Citizenship is both a ground of inadmissibility under INA 212(a)(6)(C)(ii) and a ground of deportability under INA 237(a)(3)(D). This essentially means that an individual can possibly be deported/removed on this basis, or in the context of applying for a green card, denied. As noted in an earlier blog entry, a false claim is tantamount to a death sentence in immigration since there is very little relief, especially if the claim was made after September 30, 1996. False claims can be made in a number of different circumstances including applying for employment, student loans, voting, as well as mortgage applications. All that need be shown is that the misrepresentation of citizenship was made for any purpose or benefit under the INA or any other federal or state law. Moreover, the misrepresentation does not necessarily have to be made in front of a government official; falsity before a non-governmental official-such as an employer, school, or lender-would also give rise to the charge.
USCIS Issuing RFE Requests and Subpoenas for I-9 Forms
It appears that USCIS has recently begun issuing Requests for Evidence to applicants applying for permanent residence, asking for copies of any I-9s. As of now, it does not appear to be a uniform practice but there is enough anecdotal evidence among fellow attorneys to characterize this as a disturbing adjudicatory trend. If the applicant furnishes an I-9 which indicates that he/she did claim to be a US Citizen, not only the adjustment of status application but the applicant’s very status is gravely imperiled. USCIS could possibly deny the application and issue a Notice to Appear, or refer the matter to ICE for further action. There is also the impracticality of such requests to consider. Applicants do not normally have copies of the I-9, as these are forms normally retained by the employer. Such onerous requests may cause friction with the employer, or the employer may no longer have the documentation.
If anything, the focus on I-9s is just illustrative of how carefully the government has been scrutinizing applications these days. Even if the applicant has never claimed to be a US Citizen, such requests raise the specter of fishing expeditions and captious tendencies. If an individual has claimed to be a US Citizen, whether on an I-9, school or loan application, it is imperative that he/she consult with an attorney to explore the consequences of such conduct. Especially in the context of an affirmative filing, the likelihood of a possible false claim charge must be carefully assessed, as well as the viability of any possible defenses, such as the lack of intent, timely retraction, or claims made while a minor under a reasonable belief that one was a citizen.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.