Immigration, I-9 and E-Verify Compliance for Employers

Immigration, I-9 and E-Verify
Compliance
Business Law Training – November 8, 2018
Eric D. Ledbetter
Partner, Chicago
(312) 715-5018
eric.ledbetter@quarles.com
Meredith C. Doll
Associate, Chicago
(312) 715-5233
meredith.doll@quarles.com
Nneka N. Umeh
Associate, Chicago
(312) 715-5124
nneka.umeh@quarles.com

Why Worry About I-9s?
•Federal regulations (IRCA 1986)
•Civil fines – Substantive violations
•Civil fines – Technical/paperwork violations
•Criminal penalties - If pattern or practice
2

Employers’ Conundrum
•ERs MUST:
• Verify identity and work authorization of new hires
• Complete Form I-9 correctly
• Retain Form I-9
•WITHOUT discriminating based on citizenship or national
origin
3

Form I-9 Employer Resources
• New Form I-9 available at www.uscis.gov under "Immigration Forms"
tab
• USCIS I-9 ER Handbook M-274 (available online)
• ICE M-396 Guide to Travel and Identity Documents
• Call if ever unsure (better safe than sorry!)
4

Top 10 I-9 Issues and Easy Solutions
1. Not requiring EEs to complete Form I-9
• RESULTS: Substantive violation and/or known hiring
violation
• SOLUTION: Create workable I-9 compliance system
5

2. Not completing I-9 on first day
• EE must complete ENTIRE Section 1 by first day
• But has 3 days to provide eligibility documents
• RESULTS: Paperwork violation; creates follow-ups
• SOLUTION: Send EE I-9 once offer accepted, centralize I-9, create
accountability
6

3. Accepting receipts or copies instead of real, original documents
• Receipts may be acceptable for replacement if it was lost, stolen or damaged
• Never accept ONLY receipt for first-time application
• RESULTS: Paperwork violation; creates too much follow-up
• SOLUTION: Know rule — receipts only for replacement requests with limited
exceptions
7

4. ER tells EE specifically which documents to show
• Cannot suggest or limit list
• RESULT: Document abuse claim to Immigrant and Employee
Rights Section (IER) (f/k/a Office of Special Counsel)
• SOLUTION: Do not ask; provide I-9 lists of acceptable
documents
8

5. Keeping copies of verification documents for some, not all
• Huge problem if only keeping copies for foreign-born EE
• RESULT: Title VII nationality discrimination claim or complaint to
IER
• SOLUTION: Either keep no copies or keep copies for all (E-Verify
exception for List B docs)
10

6. Filtering “old” I-9’s too early or too late
• Must keep I-9s for all current EEs
• Discard I-9 only if EE termed: 1 year after termination or 3 years after hire,
whichever is longer
• RESULT: Fines
• SOLUTION: NEVER discard I-9 for current EE — Keep termed I-9 for 1/3 years
11

7. ER fails to re-verify expiring immigration documents
• Must re-verify for all EEs with temporary work authorization
• RESULT: Fines
• SOLUTION: Re-verify EE List A or C document(s) who mark
Section 1 box “an alien authorized to work until…”
12

Top 10 I-9 Challenges And Easy Solutions
.
13

8. ER re-verifies I-9 when not necessary
• Example: Re-verifying expired driver’s license or U.S.
passports
• RESULT: Fines or accusations of document abuse
• SOLUTION: Do not re-verify EE's List B documents
14

9. Typical mistakes on Form I-9:
• Section 1 not signed by EE, Section 2 not signed by ER
• EE does not mark a box in Section 1
• Missing Name / Citizenship/Immigration Status in Section 2
• Section 2 documents do not support status listed in Section 1
• Documents listed in wrong column in Section 2
15

10. ER demands Social Security Card
• Only need the SSN#, not card for Section 1 – but then ONLY if ER is using
E-Verify
• EE can use card for Section 2 but not if it has restricting language
• RESULT: Civil fine, document abuse, or discrimination
• SOLUTION: Require SS card to complete W-4, not I-9
17

What is E-Verify?
•Web-based system
•Confirm employment eligibility of newly-hired EEs
•Does not replace the Form I-9
•Checks Form I-9 information against DHS, SSA databases
•Voluntary at the federal level, except federal contractors
•Mandatory in some states
19

When is E-Verify Mandatory?
•Federal Contractors (FAR E-Verify Rule)
• FAR E-Verify Clause in federal contract
• Other criteria: duration, value, location
• Subcontractor for (non)commercial services, construction
•State Requirements
• All ERs: AL, AZ, GA, LA, MS, NC, SC, TN, and UT
• Public ERs, State Contractors: CO, FL, ID, IN, MN, MO, NE, PA,
OK, VA
• Restrictions on Use: IL, CA
20

E-Verify Enrollment Considerations
•Enrollment Considerations
• MOU with ICE
• Monitoring and Compliance—Reviews, Audits, Referrals
• Choice of Hiring Sites, E-Verify Users, Program Administrator
•Advantages
• Rebuttable Presumption of Work Authorization
• F-1 STEM OPT EEs
21

E-Verify: Top Five Mistakes
#1: Inconsistent Use of E-Verify
• All newly hired EEs immediately following enrollment
• All registered hiring sites
• Complete required training
• Federal contractors
• Enroll in E-Verify within 30 days of contract award; and
• E-Verify all newly hired EEs within 90 days of enrollment, plus any
existing EEs assigned to the federal contract; or
• E-Verify entire workforce within 180 days of enrollment
22

E-Verify: Top Five Mistakes
#2: Late Verification
• Create case after Form I-9 is complete
• No later than third business day after EE begins work for pay
• Late case creation OK when social security number application
pending
23

Top Five E-Verify Mistakes
#3: Ignoring Additional Recordkeeping Requirements
• Make a copy of U.S. Passport, Permanent Resident Card,
Employment Authorization Document
• Only accept List B documents with a photo
• Record the E-Verify Case Number on the Form I-9
24

#4: Improper Handling of Verifications & TNCs
• Verification In Process – 24 to 36 hours
• TNC = Tentative Nonconfirmation, SSA or DHS mismatch
• TNC ≠ Unauthorized to Work
• Notify EE ASAP using Further Action Notice
• EE has 8 business days to take action
• You may not terminate, suspend, delay training or withhold /
reduce pay because of TNC
25

#5: Selective or Discriminatory Use of E-Verify
• All newly hired EEs, including U.S. Citizens
• Do not require more or different documents for certain EEs
• Post required notices
26

I-9 Investigations
•Conducted by ICE Auditors
•Commences with a Subpoena and/or Notice of Inspection
•Three days to Respond
27

ICE: I-9 Knowing Hiring/Cont to Employ Fines
Knowing Hire / Continuing to Employ Fine Schedule
(Effective for penalties assessed after 1/27/17 where violation occurred after 11/2/15)
Knowing Hire and Continuing to Employ
Violations
First Tier
$548 - $4, 384
Second Tier
$4,384 - $10,957
Third Tier
$6,575 - $21,916
0% – 9% $548 $4,384 $6,575
10% – 19% $1,140 $6,322 $8,547
20% – 29% $1,754 $7,232 $11,177
30% – 39% $2,411 $8,174 $13,807
40% – 49% $3,069 $9,094 $16,568
50% or more $3,726 $10,026 $19,242
29

ICE: I-9 Substantive Error Fines
Substantive / Uncorrected Technical Violation Fine Schedule
(Effective for penalties assessed after 1/27/17 where violation occurred after 11/2/15)
Substantive Verification
Violations
1st Offense
$220 - $2,191
2nd Offense
$220 - $2,191
3rd Offense +
$220 - $2,191
0% – 9% $220 $1,096 $2,191
10% – 19% $548 $1,315 $2,191
20% – 29% $876 $1,534 $2,191
30% – 39% $1,205 $1,753 $2,191
40% – 49% $1,534 $1,972 $2,191
50% or more $1,862 $2,191 $2,191
30

ICE: I-9 Fines Enhancement Matrix
Enhancement Matrix
Factor Aggravating Mitigating Neutral
Business size + 5% - 5% +/- 0%
Good faith + 5% - 5% +/- 0%
Seriousness + 5% - 5% +/- 0%
Unauthorized Aliens + 5% - 5% +/- 0%
History + 5% - 5% +/- 0%
Cumulative Adjustment + 25% - 25% +/- 0%
31

What Triggers an I-9 Investigation?
•Tips received by ICE from competitor or disgruntled
former EE
•EE arrested with company ID and interrogated
•ER in a sensitive security-related industry
32

Independent / Self-Audits
•Review of all active and retained I-9’s by a neutral person
•Compare against payroll run
•Analyze results
•Do training
•Make written policy
33

DOJ I-9 Investigations
• Immigrant & Employee Rights Section (DOJ)
• "Unfair Immigration-Related Employment Practices"
• Section 274B of the Immigration & Nationality Act
• 8 U.S.C. § 1324b
• 8 C.F.R. § 274B
34

What are "Unfair Immigration-Related Employment
Practices?"
• Means I-9 Related Discrimination
• Main types of I-9 discrimination:
• National Origin Discrimination
• Citizenship Status Discrimination
• Document Abuse – Asking for more or different documents if a new hire EE looks or
sounds "foreign"
• Retaliation
• * It is not discriminatory to prefer a U.S. citizen/national over an equally
qualified authorized alien
• * Title VII protects those without an immigration status or work authorization
35

Penalties for I-9 Related Discrimination
• Fines of $250-$2000 per offense
• Can go as high as $10,000 per offense for subsequent violations
• Order to hire/reinstate with or without backpay (< two years)
• Order to become compliant with I-9 rules
• Order to keep track of ALL applicants and report to the DOJ
• Order to post notices for EEs and conduct HR trainings
36

What Happens During a DOJ Investigation?
•ER receives a request for documents / information
•Usually must respond within a few days
•DOJ often requests additional documents
•DOJ can exercise broad subpoena powers
37

What Triggers a DOJ Investigation?
•Statements from current and former EEs
•Complaints from the public, other competitors
•Data from other agencies (EEOC, NLRB, DOL, OFCCP)
•Routine I-9 audit
38

Avoid “Evidence” of Discrimination in
Applicant Interviews/Written Employment Applications
Permissible inquiries into the work authorization of prospective
EEs:
1. Are you authorized to work in the United States?
____ Yes ____ No
2. Will you now or in the future require sponsorship by Company for employment
authorization?
____ Yes ____ No
39

Avoid Investigations – Minimize Liability
• Consistency!
• Avoid asking for more or different documents from certain new hires
• Avoid specifying which I-9 documents the individual must present
• Avoid "over-documenting" the I-9
• Keep copies of I-9 documents for ALL EEs
• Apply honesty policies consistently
• Ask the same questions of all applicants
• Facilitate and respond to EE complaints
• I-9 process performed only by trained HR professionals
40

Questions?
Eric D. Ledbetter
Partner, Chicago
(312) 715-5018
Meredith C. Doll
Associate, Chicago
(312) 715-5233
Nneka N. Umeh
Associate, Chicago
(312) 715-5124
41
© 2018 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and
information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about
your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.

Thank You!
Eric D. Ledbetter
Partner, Chicago
(312) 715-5018
Meredith C. Doll
Associate, Chicago
(312) 715-5233
Nneka N. Umeh
Associate, Chicago
(312) 715-5124
53
© 2018 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and
information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about
your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.

Immigration, I-9 and E-Verify Compliance for Employers

Recommended

Recommended

More Related Content

Similar to Immigration, I-9 and E-Verify Compliance for Employers

Similar to Immigration, I-9 and E-Verify Compliance for Employers (20)

More from Quarles & Brady

More from Quarles & Brady (20)

Recently uploaded

Recently uploaded (20)

Immigration, I-9 and E-Verify Compliance for Employers