July 14, 2020

Volume X, Number 196

July 13, 2020

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SCOTUS Opens Door for State Criminal Prosecutions Using I-9 Information

Earlier this month, the United States Supreme Court issued an opinion enabling state prosecutors to use information found in federal I-9 documents when prosecuting unauthorized immigrants for identity theft.  

In Kansas v. Garcia, the defendants secured employment by using the identity of another person on the I-9 form when applying for work. They also used these same identities when they completed their federal and state tax-withholding forms, the W-4 and K-4 respectively. Although initially picked-up for unrelated traffic violations, the defendants were subsequently tried, and convicted of identity theft in state court for their use of another person’s Social Security number on their W-4 and K-4. Like many states, Kansas’s identity-theft law criminalizes the use of any personal identifying information belonging to another person with the intent to defraud in order to receive any benefit. 

On appeal, the Kansas Supreme Court overturned the convictions, finding that Immigration Reform and Control Act of 1986 (IRCA), preempted the state law and prohibited Kansas from using any information contained within an I-9 as the basis for an identity theft prosecution of an unauthorized alien seeking employment. IRCA, requires employers to comply with a federal employment verification system, and makes it unlawful for employers to hire an alien knowing that he or she is unauthorized to work in the United States. The Kansas court reasoned that use of I-9 forms and appended documentation is limited to enforcement of the Immigration and Nationality Act or other specified federal prohibitions only.         

In its opinion reversing the Kansas court, the Supreme Court held that because the information contained in I-9s could be found in other personnel documents, the mere fact that an employee’s Social Security number is contained in an I-9 does not mean that state law enforcement cannot use that information to prosecute the defendants for state crimes relating to identity-theft. Following this ruling, it is expected that there will be an increase in state identity-theft prosecutions of unauthorized immigrants. 

In addition to the expected upswing in state prosecutions of unauthorized immigrant employees, the Supreme Court’s decision may have collateral consequences for employers. The Bureau of Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI), has made immigration enforcement a priority, they employ a worksite enforcement strategy that focuses on criminal prosecutions of employers who knowingly break the law, while using I–9 audits and civil fines to encourage compliance with IRCA. It is recommended that companies continue to implement and maintain vigorous compliance programs.    

Click here to view the Supreme Court’s complete decision in Kansas v. Garcia

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 86


About this Author

Melissa S. Ho Shareholder Phoenix Antitrust, Antitrust - Health Care Compliance, Fraud and Abuse, Stark, Financial and Securities Litigation, Financial Technology, Regulation Government Investigations, Health Care Litigation

Melissa Ho is a trial attorney with a detailed understanding of government regulations and business litigation. A former prosecutor, she is sympathetic to the disruption and chaos a government inquiry and criminal investigation can cause. 

Melissa defends individual clients against a wide variety of criminal allegations, including health care fraud, qui tam, RICO violations, bank fraud, real estate fraud, mortgage fraud, foreign corrupt practices, securities fraud, water and air quality violations, government corruption, procurement and public fraud, professional misconduct, civil...

Andrew T. Fox Phoenix Polsinelli Government Investigations Labor and Employment Commercial Litigation Litigation and Dispute Resolution

As a member of Polsinelli’s Government Investigations practice, Andrew assists clients in all aspects of white collar criminal defense and internal corporate investigations. Working to understand each client’s unique situation, he helps guide clients through government inquiries and provides counsel that aligns to their business strategies. Andrew has experience drafting briefs, memoranda and responding to discovery requests.

Prior to joining Polsinelli, Andrew served as a law clerk to The Honorable Judge Douglas L. Rayes on the United States District Court for the District of Arizona.

Jeffrey S. Bell, Polsinelli PC, International Immigration Lawyer, Visa Compliance Issues Attorney

Jeffrey Bell is an innovative and creative problem solver. In the ever-changing world of immigration law, clients appreciate his ability to see the big picture as he crafts practical strategies to handle complex immigration issues. With more than 20 years of experience, Jeff maintains not only a thorough understanding of immigration law and practice, but also of how immigration issues can impact clients’ businesses. Jeff partners with United States and international companies in developing immigration strategic plans.

Jeff has significant...