S. Genco Opinion 92-39

Penalties for Misrepresentations on Form I-9

April 30, 1991
CO 212.13-C
CO 274A-C

LEGAL OPINION: Penalties for misrepresentations by an unauthorized alien on an Employment Eligibility Verification Form (Form I-9)

Paul Stultz, District Counsel, Omaha, NE
Office of the General Counsel.

QUESTIONS

I.Whether an alien who misrepresents his or her citizenship or immigration status or presents counterfeit documents in completing INS Employment Eligibility Verification, Form I-9, is subject to exclusion from the United States under section 212(a)(19) of the Immigration and Nationality Act (Act).n11

SUMMARY CONCLUSION

Misrepresentations made to an employer in completing a Form I-9 are not statements made to a United States government official authorized to grant visas or other benefits under the Act and therefore cannot form the basis for the exclusion of an alien under section 212(a)(19) of the Act. The same holds true for presentation of counterfeit documents.

These actions, however, do render an alien subject to criminal persecution. Also, the Immigration Act of 1990, Pub. L. No.101-649, 104 Stat. 4978, provides for assessment of civil administrative penalties against persons or entities who fraudulently complete forms I -9 or who present or accept fraudulent documents in conjunction with Forms I-9. Beginning June 1,1991, an alien subject to a final order assessing such a penalty is ineligible for adjustment of status and subject to exclusion.

ANALYSIS

A.  An Alien's False Statement or Presentation of False Documents in Completing a Forn1 I-9 Does Not Render the Alien Excludable under INA Section 212(a)(19)

Any alien "who, by fraud or willfully misrepresenting a material fact, seeks to procure, or has sought to procure or has procured a visa, other documentation, or entry into the United States or other benefit provided under this Act" is ineligible to receive a visa and shall be excluded from admission into the United States. INA 212(a)(19), 8 U.S.C. 1182 (a)(19) -To find an alien excludable under the provisions of section 212(a)(19) of the Act, an immigration judge must determine that: (1) there has been a misrepresentation made by the applicant; (2) the misrepresentation was willfully made, and (3) the fact misrepresented was material. In the Matter of M--, 6 I & N Dec. 149 (1954); Matter of L-L-, 9 I&N Dec. 324 (1961).

The terms "willful," "misrepresentation," and "material" are strictly defined for purposes of section 212(a)(19) of the Act. A misrepresentation is an assertion or manifestation not in accordance with the facts. Misrepresentations can be made in oral interviews, written applications, or by submitting evidence containing false information. For a misrepresentation to fall within the purview of section 212 (a)(19) of the Act, however the alien must have made the misrepresentation before an official of the United States Government; generally speaking, a consular officer or an INS officer. Matter of L-L-, 9 I & N Dec. 324 (1961). Furthermore, a false statement of misrepresentation must be made to obtain some benefit under the INA in order for the false statement to render an alien excludable. FAM Note 7.2 to 2 CFR 40- 7 (a)(19), TL:VISA-4 (November 19, 1987).

This inquiry concerns the use of the Employment Eligibility Verification Form (Form I-9), which is used in connection with the enforcement of section 274A of the Act. For two reasons, we render the alien subject to exclusion under section 212(a)(10) of the Act. First, an alien who falsifies a Form I-9 does not make the false statements before a United States government official authorized to grant visas or other immigration benefits.

Secondly, while the decision of the Service to grant an alien authority to accept employment is a benefit under the INA, an employee's decision to hire any particular individual involves a private employment contract. Thus, false statements on Form I-9 are not for the purpose of obtaining a benefit under the INA and, therefore, cannot form the basis for exclusion of an alien pursuant to section 212(a) (19) of the Act.

B. The Law Provides Sanctions, other than Exclusion under Section 212(a)(19) of the Act, for Aliens Who Make False Statements on Forms I-9

An alien's false statements in completing Form I-9 do not render him or her excludable from the United States under section 212(a)(19) of the Act. There are other sanctions, however, which the Service may seek to impose on aliens who falsify Forms I-9. A prospective employee attests to the accuracy of the information he or she provides on Form I-9 under penalty of perjury .The law provides that:

(b) Whoever uses-- 

(1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor,

(2) an identification document knowing (or having reason to know) that the document is false, or

(3) a false attestation, for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act, shall be fined in accordance with this title, or imprisoned not more than two years, or both.

18 U.S.C. 1546(b). Furthermore, an alien convicted under section 1546 is subject to deportation from the United States. INA 241 (a)(3)(B)(ii), 8 U.S.C. 1251(a)(3)(B)(iii), as amended by Immigration Act of 1990 ("1990 Act"), Pub. L. No.101-649, 602(a), 104 Stat. 4978,5077,5081 (1990).

The 1990 Act provides additional sanctions. Section 544(a) of the 1990 Act amends the Immigration and Nationality Act, as amended, by adding new section 274C .1990 Act, 544(a), 104 Stat. at 5059. This new section 274C provides for civil administrative penalties against persons or entities engaging in immigration-related document fraud. INA 274C(d)(3), 8 U.S.C. 1324c(d)(3). The penalties are in effect for violations committed on or after November 29,1990. 1990 Act, Pub. L. No.101-649, 544(c), 104 Stat. at 5061.

New section 274C makes it unlawful for a person or entity knowingly to:

--forge, counterfeit, alter or falsely make any document;

--use, attempt to use, possess, obtain, accept or receive any forged, counterfeit, altered or falsely made document;

--use or attempt to use any document lawfully issued to a person other than the possessor (including a deceased individual);

for the purpose of or in order to satisfy any requirement of the INA. INA 274C(a)(1) through (3),8 U.S.C. 1324c(a)(1) through (3). It is also unlawful knowingly to accept or receive any document lawfully issued to a person other than the possessor (including a deceased individual) for the purpose of complying with section 274A(b) of the Act. Id. 274C(a)(4), 8 U.S.C. 1324c(a)(4). As noted above, employment, as contracted with employment authorization, is not a benefit under the INA. Attesting to one's citizenship or immigration status and presenting evidence of identity and employment authorization, however, are requirements of the INA. Id. 274A(b)(2), 8 U.S.C. 1324a(b)(2). Thus, civil penalties under section 274C may be assessed against those employees who falsely complete Forms I-9 fraudulent documents in connection with the Forms I-9. Id. 274C(a) and (d)(3), 6 U.S.C. 1324c(a) and (d)(3). The penalties include a monetary fine, as well as a "cease and desist" order. Id. The civil penalties are in addition to any criminal penalties imposed in Title 18, United States Code. Id. 274C(c), 8 U.S.C. 1324c(c).

The 1990 Act imposes an additional sanction on alien violators of section 274C. Effective June 1, 1991, an alien subject to a final order under section 274C would also be ineligible for admission to the United States, and for adjustment of status. See id., 601(a) (amending INA 212(a)(6)(F) and (e) (establishing effective date), 104 Stat. at 5067,5074 and 5077.

Congress had intended that aliens subject to final orders under section 274C of the Act be amenable to deportation. This intent is evident from the fact that section 544 of the 1990 Act also amended INA 241 I (a), 8 U.S.C. 1251(a), to provide for the arrest and deportation of an alien subject to a final order assessing a penalty for violation of section 274C. 1990 Act, Pub. L. No.101-649, sec. 544(b), 104 Stat. at 5061. Section 602(a) of the 1990 Act, however, enacted a comprehensive revision of section 241(a). 1990 Act sec. 602(a), 104 Stat. at 5077. Section 602(a) of the 1990 Act, however, enacted a comprehensive revision of section 241(a). 1990 Act sec. 602(a), 104 Stat. at 5077. This revision of the deportation grounds became effective for deportation proceedings in which the orders to show cause are issued on or after March 1, 1991. Id. 602(d), 104 Stat. at 5082. The amended deportation statute does not carry over the deportation provision created by section 544(b). Id. 602(a), 104 Stat. at 5077. Thus, a technical correction bill may need to be enacted to ensure that the intent of Congress that aliens subject to final orders under 274C are amendable to deportation is given full legal effect.

An alien who knowingly competes Form I -9 falsely, or who offers fraudulent documents as proof of identify, employment authorization, or both, is subject to criminal and civil penalties. An alien who is convicted under 18 U.S.C. 1546 is also amenable to deportation. Beginning June 1,1991, an alien subject to a final order imposing civil penalties under section 274C of the Act is ineligible for adjustment and subject to exclusion. Thus, although an alien does not become excludable under INA section 212(a)(19) by falsifying a Form I-9, the law does provide suitable sanctions which the Service may seek to impose for this conduct.

/s/

Paul w. Virtue
Acting General Counsel


1 The text of the 1990 Act has two subsections 544 (c). 104 Stat. at 5061. The effective date is in the second subsection 544 (c).