Published March 5, 2020
By: Richard Hanus, Esq.
Form I-9 is the document employers and employees complete and sign to confirm an employee’s eligibility to be lawfully employed in the U.S. For foreign nationals residing and working in the U.S. without immigration status, completion of the I-9 often involves a complicated and perilous set of decisions, especially when the worker is submitting a job application under an assumed name and/or social security number. Now, according to the U.S. Supreme Court in Kansas v. Ramiro Garcia, individual states have legal authority to use false information contained in I-9’s to support criminal, identification theft charges against such foreign nationals.
In the case at issue, the state of Kansas prosecuted undocumented workers Ramiro Garcia, Donaldo Morales and Guadalupe Ochoa-Lara, for using stolen Social Security numbers in order to gain employment as restaurant help. However, due to allegedly ambiguous language in various state and federal statutes at play, the Kansas Supreme Court, in 2017, reversed previously imposed lower court decisions to convict the 3 undocumented foreign nationals for i.d. theft. Now, the U.S. Supreme Court has chimed in, reversing the State of Kansas’ Supreme Court and giving Kansas authorities the green light for the reinstatement of these convictions.
The 2017 Kansas Supreme Court decision overturning these individuals’ state identity theft convictions, concluded that a prosecution for this type of criminal act could not be premised on a state criminal law allegation but instead were exclusively governed by the Immigration Reform and Control Act of 1986 (IRCA). The IRCA language at issue, that “any information contained in or appended to” the I-9 form “may not be used for purposes other than for enforcement of” federal immigration laws – was at the heart of the dispute leading the Supreme Court to accept the case and rule on the matter.
The U.S. Supreme Court in a 5-4 decision, disagreed with the Kansas Supreme Court, applying its own interpretation of this plain language and issuing a decision allowing individual states, like Kansas, to criminally prosecute for acts surrounding the completion of I-9’s, and the use of another individuals legal information or documentation.
As an aside, the events leading up to the convictions and post conviction litigation are quite tragic, in that the population most impacted by the ruling is comprised mainly of otherwise law abiding individuals who are ready, willing and able to work and contribute to our nation. The reality is that the U.S. is in severe need of legal avenues to allow employers – hungry to fill positions with workers in general – to hire motivated and competent foreign nationals. The result – 12 million undocumented individuals are now living in the U.S., the vast majority of whom are here to work, pay taxes, get ahead and provide a better life for themselves and their children, but with no avenue to obtain legal authorization to work or live here. For these folks, there is no “line”, or “right way”.
Additionally, in almost all cases involving foreign nationals using assumed names or fake documents, the employment relationship leads to a huge windfall for our nation’s treasury due to these workers’ inability to claim the social security or employment tax amounts withheld from their paychecks. If and when such individuals are able to legalize their immigration status though, options to transfer these monies to their own accounts may be available.
Finally, it is important to note that just because the U.S. Supreme Court now gives the go ahead to states like Kansas to prosecute on these grounds, does not mean all states across our nation will now do the same thing. Of course, individual states with agendas similar to Kansas’ are now free to prosecute in a similar fashion though if they deem such prosecutions to be in their state’s interests.
PUBLISHED March 5, 2020– “IMMIGRATION LAW FORUM” Copyright © 2020, By Law Offices of Richard Hanus, Chicago, Illinois