I 9 Compliance Workshop 2 23 2010Presentation Transcript
Form I-9 Employment
M. Mercedes Badia-Tavas
Badia-Tavas Law Group, Ltd.
8 West Monroe, Suite 1006
Chicago, IL 60603
The Legal Framework
Employer Sanctions Provision of the 1986 Immigration Reform
and Control Act (“IRCA”) –
Section 274A for the Immigration and Nationality Act (“INA” or “the
Act”) – This provision made it illegal for U.S. Employers to
knowingly hire or continuing to employ undocumented workers.
Form I-9 – Employment Eligibility Verification for all U.S. employers
to complete on the first day of hire and within 3 business days to
verify identity and employment authorization in a complete, specific
and nondiscriminatory manner.
Establish Civil and criminal penalties for knowingly hiring or
continuing to employ undocumented workers.
Immigration Act of 1990 and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 “IIRIRA”.
Reduced the number of acceptable documents from list
Added intent and purpose to discriminate for document abuse
Knowledge and Penalties
An employer who continues the employment of an employee hired
after November 6, 1986, knowing employee is or has become an
unauthorized alien with respect to that employment, is in violation of
section 274A(a)(2) of the Act
Actual and Constructive Knowledge will trigger the employer sanctions
liability. “Not only actual knowledge, but also knowledge which may
fairly be inferred through notice of certain facts and circumstances
which would lead a person, through the exercise of reasonable care, to
know about a certain condition." 8 C.F.R. §§274a.1(l)(1),
Facts: failure to verify on Form I-9, request for labor certification,
notice from DHS person is unauthorized, and allowing another to
employ unauthorized aliens.
Speculation based on race or ethnicity can give rise to unfair
immigration-related employment discrimination.
Penalities for Non-Compliance
Civil – for knowingly hiring or
continuing to employ*
1st offensive civil $375 to $3200 for each unauthorized alien
2nd offense civil $3200 to $6500
Any offense after 2nd $4500 to $16000
Pattern and Practice of knowingly hiring – criminal penalty up to $3000 plus up to
6 months in prison. Defined as "regular, repeated, and intentional activities, but
does not include isolated, sporadic, or accidental acts."
Civil – “paperwork violations” for not
properly maintaining I-9 records
$110 to $1100 for each mistake
Penalities – cont.
Civil – Document Fraud charges for accepting clearly
fraudulent documents or assisting in making them.
1st offense - $375 to $3200 for each document falsely
made or accepted
Every offense thereafter - $3000 to $6500 for each
DHS/ICE Strategy – Worksite Enforcement Investigations not
simply audits resulting in civil & criminal penalties to company
and its personnel with seizure of assets. Employer (employees
at all levels) may face penalty and/or jail.
Harboring undocumented workers – Felony – 10-year
Money laundering – Felony – 20-year prison sentence
Penalties – Mitigating /
Size of employer’s business;
Good faith of the employer to
Seriousness of violation;
Whether or not the individual was
an unauthorized alien; and
History of previous violations
Employment Practices (UIREP)
Compliance viewed & balanced against discrimination
IRCA prohibits discrimination based on national
origin, citizenship status, or “Document Abuse” with
knowledge and intent to discriminate
IRCA interplays with other civil rights and
Protected class – all USC & work authorized aliens
(LPR, CPR, nonimmigrants and others authorized to
work with USCIS approval)
Good Faith Defense --
An employer or a recruiter or referrer for a
fee for employment who shows good faith
compliance with the employment verification
requirements shall have established a
rebuttable affirmative defense that the
person or entity has not violated section
274A(a)(1)(A) of the Act by knowingly hiring,
recruiting, or referral of an unauthorized FN.
What is Good Faith to
Timely and complete Form I-9 procedures;
Review original documents presented and
copy original documents from list to attach to
Follow-up on all reverification requirements;
Acting upon notice from DHS/SSA or other
agency on an employees documents;
Written policy adopted by management; and
Regular training and self-audits of Forms I-9
with checklist of steps and manuals.
Basic Requirements: Employment
Verification by Employer--
Form I-9 required of all new employees hired after
Employee in person fully completes Section 1 on 1st
day of hire and within 3 days verification completed
Employer ensures Section 1 complete – SS# not
required unless using E-Verify;
Employer fully completes Section 2 by examining
employee’s ORIGINAL documents (List A OR List B
AND C) presented to verify identity and employment
Maintain I-9 for 3 years from date of hire, OR 1 year
after termination, whichever is later
Electronic storage of Forms I-9 is permitted (Oct
2004) if “a high degree of legibility, readability,
security and readily available.”
Employment Verification –
Review of Original Documents
Review ORIGINAL documents presented by employee
to establish identity and employment eligibility –
One document from List A OR one from List B and List C –
see I-9 Form and M-274 Manual
CAN NOT REQUIRE employee to provide specific documents
“Reasonably appear on their face to be genuine and to
relate to the person presenting them. . .” You are NOT
expected to be document police. But, there is duty to inquire
regarding discrepancies such as name, birth date or
statements not matching documents.
Copies of documents OPTIONAL. If copied, attach to
COMPLETED form. Policy must be uniform and
consistent for all employees throughout company.
Current I-9 Form (Rev. 08/07/2009)Y for
Compliant with IIRIRA and other recent legal
changes for list of acceptable documents.
Use in conjunction with M-274 - Handbook for
Use for reverification of documents for
existing employees by completing Section 1
and Section 3 only and attach to original I-9
Documents for Form I-9
Compliance – Chart & Manual
List A – Identity and Employment Eligibility
List B – Identity Only
List C – Employment Authorization only
Reverification – Tickler System
Employee lists an expiration date in Section 1
for work authorization; OR
Employee’s work eligibility document in
section 2 contains an expiration date
Failure to reverify is a paperwork violation; if
employee is undocumented, then employer
could be charged with knowingly employing
an unauthorized alien.
Variations – requires tickler
Receipt for Verification – Receipt Rule – only if already work
authorized, not expired and waiting on documents
Accept for List A, B, or C document if lost, stolen or damaged (90 days to
Accept for temporary I-551 Stamp on Form I-94 (date of exp. or 1 yr)
Accept for refugee admission stamp on Form I-94 (90 days)
I-551 Stamp for Temporary Evidence of LPR status must
be reverified. USCIS provides I-551 Stamp if requested – not
automatic. I-797 Notice of Action Approving LPR is NOT
enough. And, LPR does not loose status with expiration.
The “240 day rule” – work authorization extended for up to
240 days from expiration for nonimmigrants who timely file
extensions. Record receipt and 240 days to reverify.
H-1B Portability Rule – employee authorized to work upon
the filing of I-129 petition. Need valid passport, visa &
unexpired I-94 form with the I-797 Receipt Notice for filing.
Reverify after approval with passport and newly issued I-94
Variations - Students
F-1 Student eligible for curricular practical
training - No EAD is issued but permitted if
endorsed on I-20 Certificate
F-1 Student eligible for automatic OPT
extension as beneficiary of a timely filed H-1B
petition with change of status effective Oct. 1 – Use
receipt notice & update with approval
F-1 Student in STEM field with 17-month OPT
work authorization extension – I-765 filing required
before initial expiration of OPT. E-Verify enrollment
by employer. Authorization extended by 180 days
after expiration – Use I-797 Receipt and note on I-9
the 180 day extension to update with approval
Other variations in documents
DRIVERS /ID DOCUMENTS - REAL ID Act of
2005 – CONTRAVERSIAL AND COSTLY FOR STATES
Federal law imposing certain security, authentication,
and issuance procedures standards for State driver's
licenses and state ID cards, for acceptance by the
federal government for "official purposes", as defined
by the Secretary of Homeland Security (boarding
commercially operated airline flights and entering
federal buildings and nuclear power plants, etc.).
After 2011, required for official purposes
REAL ID ACT
A photo ID, or a non-photo ID that includes full legal name and
Documentation of birth date.
Documentation of legal status and Social Security number
Documentation showing name and principal residence address.
Digital images of each identity document stored in each state DMV
States must verify, with the issuing agency, the issuance, validity, and
completeness of each document“ of the applicant to prove their
identity, birth date, legal status in the U.S., social security number and
their principal address. The only foreign document acceptable is a
Most States have resisted implementation because of the cost and
privacy issues. Some are trying to comply.
Section 1: The Employee did not - sign or date the form; complete
Section 1 on the date of hire; check one of the three boxes regarding
status; check the correct box; list an Alien Number, Admission Number,
or expiration date
Section 2: The Employer did not - sign and date Section 2; fill in
the date of hire; complete Section 2 within three business days of hire;
did not complete the form but photocopied documents; person signing
the Form is not the same person who saw the original documents; did
accept nonconforming documents (e.g., hospital birth certificates,
foreign birth certificates); did accept documents that did not
"reasonably relate" to the employee (e.g., different names, dates of
birth); did accept too many documents (items on list A, B, and C),
which can lead to a discrimination charge against the Employer; did
keep copies of documents for some employees, but not all.
Section 3: The Employer Did Not Reverify Form I-9 When
Required by completing form and dating.
Proper Pre-hiring Questions
"Are you legally authorized to work in the
United States?" and
“Will you now or in the future require
sponsorship for employment visa status (e.g.,
Applicants should not be asked to specify
their citizenship status in the context of the
employment verification process.
Questions such as "Explain the basis of your
current employment authorization" should be
Recommendation to Self Audit
Check accuracy and completeness;
Review Section 1 & Section 2, copies, etc.
DO NOT CREATE FORM I-9 to correct
problem– keep all versions of forms used;
Retain only Form I-9 required (3 years from
date of hire or 1 year from termination);
Date/initial changes – no white-out; memo
file if needed;
Develop uniform written policy for I-9
Compliance; centralize process with checks
built-in; seek advise of legal counsel.
Electronic Verification as part
Form I-9 Process
E-Verify at www.uscis.gov – An automated link to DHS
and SSA databases to assist employers to determine
employment eligibility of new hires & validity of their Social
Voluntary system except some states & Federal
Government contractors required to participate
Employer agrees to MOU – a Memorandum of
Understanding with DHS/ICE/SSA
Paper or Electronic I-9 Forms must still to be used
SSA verification is completed first then DHS
Identity documents must have photos and social security #
Employer must notify if a final nonconfirmation employee
continues to be employed or be fined $550 to $1100
E-Verify – cont.
“DHS reserves the right to conduct Form I-
9 compliance inspections during the course
of E-Verify, as well as to conduct any other
enforcement activity authorized by law.”
Not 100% accurate – about 4% receive
tentative nonconfirmed results.
naturalized and derivative citizenship data
is not updated with SSA
employment authorized categories are not
automatically entered into SSA
DHS errors – incorrect classification at
entry by CBP
All federal government contractors
MUST use E-Verify
Government Inspections of
Forms I-9 - Audits
Three days notice prior to an inspection by officers;
ORIGINAL Forms I-9 must be made available or on
microfilm or microfiche at the location where request
for production made.
No subpoena or warrant is required, but use is not
DHS has subpoena power under section 235(a) of
the Act. But, the subpoena MUST BE SPECIFIC and
reviewed before consent is given to enter.
ICE Worksite Enforcement
Investigations & Compliance
Strategic shift to pursue employers with criminal
charges and seizure of assets not simply civil fines
DHS/ICE Office of Investigations & 2 offices of DOL –
Wage & Hour Div. and Office of Federal Contract
Lead driven investigation by DHS over time to gather
evidence through all available means (current/former
employees informants, agency records, SSA, IRS,
wiretaps) – this is how they justify probably cause;
Coordinated effort with local law enforcement to
enter, seize records, question employees and arrest.
No PRIOR NOTICE with civil / criminal warrants
Dynamics of and procedures
of ICE Raid or Worksite
Enforcement – What to do?
Develop a corporate plan of action to
respond quickly and uniformly –
Who is the company point of contact to
notify the legal team? Receptionist,
How? Telephone, e-mail, pager, etc.
What are the steps for the legal team?
ICE Worksite Enforcement–
Criminal Search Warrant should be
issued that is expansive, but must be
reviewed for accuracy and content.
ICE Worksite Enforcement –
Employees should not verbally consent
to a search and seizure; the scope of
the warrant must support it.
Do not take actions considered
“harboring” – notifying employees at
home, shredding docs., etc.
Videotape the actions of ICE agents
during the raid.
ICE Worksite Enforcement –
Company attorney should obtain copies
of all seized documents;
A private investigator should be hired to
investigate the facts and circumstances
leading up to the raid and thereafter;
Retain immigration counsel to develop
and implement a compliance program.
Form I-9 Completeness and Accuracy
#1 – Foreign national “FN” is offered a job and the employer
gives him Form I-9 form before the first day. On second day of
hire, completes Section 1 indicating he is a LPR, signs and
dates. What steps need to be taken by employer? What about
an I-551 Stamp? Is it required to be reviewed or reverified?
#2 – What if the FN says he is an alien authorized to work and
presents a foreign passport with an I-94? How would he be
authorized to work?
#3 – What if the FN is a summer intern or intern during the
#4 – What if the FN marks LPR (no A#) and presents an EAD?
Hypos – Cont.
#1 – FN completes Section 1 correctly stating he is a U.S.
citizen and presents a State driver’s license and Certificate of
Birth Abroad. Can the employer request the U.S. Passport?
#2 - FN completes Section 1 correctly stating he/she is a alien
with work authorization and provides expiration date. He/she
presents a state ID and a SSN card without restrictions. Can
the employer demand to see the EAD? What other steps can be
#3 – As acceptable documents, FN presents an unexpired EAD
with future expiration date?
#4 – Employer asks to re-verify the work documents
of employee who has presented a green card at time
of hire. The green card had an expiration date. Is
#5 – Employer demands to see an employee’s
renewed driver’s license because the original used for
the I-9 expired. Acceptable? Why or why not?
#6 – Employer refuses to accept a worker’s expired
EAD, with an official press release from USCIS stating
all such EADs have been automatically extended for a
year? Is this discrimination? Is there a duty for the
employer to verify situation with USCIS?
Era of Enforcement with unpredictable
worksite visits so Good Faith
Compliance is essential to limit liability;
Regular Training and Self Audits;
Tracking and retention method is
necessary for any U.S. employer
regardless of size; and
Seek Legal Counsel if in doubt on
documents or procedures.