BURDEN OF PROOF IN I-9 FORM DISPUTES

Introduction

With the legal scenario being so fluid today, compliance with immigration laws is something with which every business concern (big or small) should be particularly concerned. Every employer is obliged to verify that their employees have the right to work in the United States. Part of this process involves properly completing and maintaining Form I-9, Employment Eligibility Verification.

For every employee hired, there must be a filled out, signed, and retained Form I-9 in the employee’s file.

In cases employment-related, which might include problems with Form I-9, usually, there exists a conflict between the employee and employer on various matters. These matters can include discrimination, wrongful termination of services, harassment, or any problem associated with Form 1-9.

Justice has to do with knowing what it will take to prove one’s case and make a strong argument. The burden of proof is in essence the job of the victim to show enough evidence that would make a judge or jury believe in their claim.

We can help you face this challenge with our skilled immigration lawyers at Gehi and Associates, through solid evidence more persuasive than that which the opposing party may have. Whatever kind of case involving Form 1-9 work-related issues you are facing, we are ready to fight hard for you. In this regard, we have helped many people.

Overview of Form 1-9

Form I-9 is a federal form from the USCIS, which is supposed to verify identity and work authorization status of all employees hired since November 6, 1986. Employers shall not recruit or refer any person for employment if they know that the person is not authorized to work in the United States.

It is also against the law for any employer to employ or to continue employing non-citizens who happen to be unauthorized because they failed to have valid visas or work permits. All employers are also obliged to fill out and file a completed Form I-9 within three business days commencing from the day of hire or date of beginning of employment.

The entire process of Form I-9 is to make sure the employer is confirming it is following these rules and regulations.

Form I-9 consists of three sections:

Section 1: Employee Information and Verification: This portion should be filled out by the employee, who states their personal details and attests to their identity and work authorization status in the United States.

The next section: Employer or authorized representative review and verification: The section to be completed by the employer or its representative (usually in HR department). Next, the employer is to check the employee’s original documents with the identity of the employee and eligibility to work stated on the form.

Section 3: Reverification and rehires: This is the area where one updates an individual when they reissue a person for a working permit or expiration.

Burden of proof

In Form 1-9, you have opened yourself to the door of allegations of citizenship or national origin discrimination. It is up to the employees’ feelings of whether they have been discriminated against and may decide to file an action that can be charged. The burden of proof to establish their case lies with them as they have to provide sufficient evidence to show that more likely than not, the Employer has violated the law.

In any discrimination case arising from Form 1-9, the employee is supposed to prove disparate treatment in employment. These are unequal treatments of employees because of some protected characteristics such as:

Racial discrimination: It involves treating the workers differently according to their race or color. This includes but is not limited to basing hiring, promotion, pay, and harassment on one’s race.

Disability discrimination: This involves less favorable treatment of employees with disabilities or refusal of reasonable accommodation requests to enable them to perform their job tasks. This can include the denial of a doctor-approved leave.

Gender discrimination: This would be the unequal treatment of employees based on their gender, offering uneven salaries for the same type of work, or failing to promote simply because of being of a different gender. Other issues like sexual harassment also fall under this category.

You also need to be able to demonstrate that you experienced some form of adverse action-including demotion, termination, or harassment due to a protected category.

On the part of the employer, it has the responsibility to make sure the Form I-9 is completed in a timely manner and that it is thoroughly done accurately as well. An employer must verify the documentation of the employee presenting proof in a timely manner too. Incomplete Forms I-9, or worse, some employees not having an I-9 on file may lead to substantial fines to the employer.

Ways to satisfy this burden

In establishing one’s case whenever a Form 1-9 job-related claim is to be made, it is super important to collect and show various kinds of evidence. The nature of what you need usually depends on the basis of your claim.

Below are some common types of evidence that may support a Form 1-9 employment claim:

• Documentary proof

This refers to any document in writing or recording that supports your claim. These may include an employment contract, emails, text messages, company memoranda, performance evaluations, discipline records, company policies, job advertisements, pay slips, and attendance records.

Documents may provide valuable information as regards the history of a person’s job, one’s responsibilities, how that person was treated and any mistreatment or discriminatory practices.

• Witness testimony

Having witnesses who can testify to what they saw or know of the events surrounding your claim is very important. This may include co-workers, bosses, or anyone else who can give detailed stories or corroborate your claims. Their input has the potential to make your case much stronger and give it more credence.

• Your own testimony

Your own sworn testimony is evidence, too. It is important to have a clear and detailed story of what happened. These include what you experienced in the way of discrimination or other unfair treatment. Your testimony must be believable and consistent; and when you can back that up with additional evidence, even better.

• Testimony from professionals

There are times when expert witnesses will be necessary in order to address specialized knowledge or opinions relevant to your claim.

• Written complaints or grievances

If you complain to your employer about the unfair treatment, then you will need to have copies of those complaints or requests for help. These prove you tried to address the problems and document what transpired.

Get help!

It would, therefore, be wise to consult with experienced immigration lawyers who can go over your particular case and help you collect the right evidence to satisfy the burden of proof for your Form 1-9 claims.

At Gehi and Associates, we are committed to helping you collect and present the evidence to increase your likelihood of a successful outcome. Get in touch with us today!