States Can Use Information Contained in I-9s to Prosecute Identity Theft

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March 3, 2020

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In Kansas v. Garcia, the U.S. Supreme Court stated that the federal Immigration Reform and Control Act of 1986 (ICRA) does not prohibit use of information contained in the federal Form I-9 from Kansas’s identity theft and false-information statutes.  This decision reversed a prior Kansas Supreme Court decision, and further determined that identifying information entered on Form I-9 was not covered by the provisions of ICRA.

The ICRA requires all United States employers to verify that new hires are authorized to work in the country, and bars state governments from imposing penalties on employers of unauthorized aliens.  It also states that any information contained in the Form I-9 may not be used for any purpose other than enforcement of federal immigration law.

In Kansas v. Garcia, three defendants utilized other people’s Social Security numbers to complete new hire documents, including the Form I-9 and federal and state tax forms.  The Kansas identity theft statute prohibits use of any personally identifying information with the intent to defraud others to receive benefits, such as employment.  The Kansas Supreme Court originally indicated that the defendants could not be prosecuted for identity theft, because the Social Security numbers were contained in the Form I-9s protected by the ICRA.

Upon review, the U.S. Supreme Court stated that the Social Security numbers contained on the Form I-9 were not explicitly protected because the same information was contained in various other places (such as federal and state tax forms).

As a result, Kansas v. Garcia expands the information and documents – including Form I-9 – that could potentially be used to prosecute identity theft crime.

Action Items

  1. Consider conducting Form I-9 self-audits on a regular basis.
  2. Promptly review any Social Security no-match letters received.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

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