This document provides guidance to employers on I-9 requirements and procedures. It outlines the 3-part I-9 process that employers must follow for new hires, including having employees complete Section 1 on day 1, employers verifying IDs and work authorization in Section 2 by day 3, and procedures for re-verification. It also discusses I-9 audits, penalties for noncompliance, anti-discrimination laws, and strategies for minimizing liability such as conducting internal audits and training.

1. How Your Company
Can Survive an I-9
Audit
Carl Shusterman
January 18, 2012

2. I-9 Requirements for Employers -
Procedure (Part I)

Employers are required to Complete Form I-9 for
ALL new hires

Day 1 - Employee must complete top portion of form

I am a: (1) Citizen or National of the U.S.
(2) Lawful Permanent Resident - A#
(3) Alien Authorized to Work Until…
The Law Offices of Carl Shusterman

3. I-9 Requirements for Employers -
Procedure (Part 2)

By Day Three, Employers Must Verify the Worker’s
ID and Employment Authorization

Worker must present one List A Document (ID and
Employment Authorization)
or

One List B Document (Establishes Identity)
and

One List C Document (Establishes Employment
Authorization)
The Law Offices of Carl Shusterman

4. I-9 Requirement for Employers
Procedure (Part 3)

Updating and Re-verification

Re-verify Employment Authorization for
Current Employees

Re-verify or Update Employment
Authorization for Re-hired Employees

Expired Documents
The Law Offices of Carl Shusterman

5. I-9s – Photocopying & Retention

Retention – Paper, Microfilm, Electronic

For 3 years after hire, or

For 1 year after termination, whichever is later.

Mergers & Acquisitions

Copy Employee Documents?
The Law Offices of Carl Shusterman

6. I-9 Inspections

By DHS, OSC and DOL

Written Notice of Inspection

72 Hours Notice

Potential Civil and Criminal Penalties

Advisability of Internal Audits
The Law Offices of Carl Shusterman

7. I-9 Civil Sanctions

Paperwork Violations – Up to $1,100 per employee

$1,000,000+ fine for Abercrombie & Fitch in 2010

“Knowing” Violations –

1st
Offense: $375 – 3,200 each employee

2nd
Offense: $3,200 - 6,500 each employee

3rd
Offense: $4,300 – 11,000 each employee

Wal-Mart’s $11,000,000 fine in 2005 allowed
company to escape criminal penalties
The Law Offices of Carl Shusterman

8. I-9 Criminal Penalties

“Pattern or Practice” Violations

Up to $3,000 per employee

Up to 6 months imprisonment

Golden State Fence Co., a California employer,
paid $4.7 million to ICE in plea bargain in
2007. U.S. Attorney sought prison terms, but
Judge granted the executives probation.
The Law Offices of Carl Shusterman

9. Immigration Anti-Discrimination Laws

Discrimination based on
Citizenship Status

Discrimination based on
National Origin

Fines for Violations

$375 – 16,000 per employee

$257,000 Fine for Immigration
Discrimination – California
Healthcare Employer in 2010
The Law Offices of Carl Shusterman

10. I-9 Document Abuse

Employer cannot specify which List A, B or C
documents that it wishes to see

Fines: $110 - $1,100 per individual

Employers should:

Let Employee choose what documents to present

Not require extra documents

Not reject documents which appear genuine
The Law Offices of Carl Shusterman

11. No-Match Letters

Constructive Knowledge?

Give Employee Opportunity to Correct

Social Security Number Verification Service
(SSNVS) (800) 772-6270

http://www.socialsecurity.gov/employer/noM
atchNotices.htm (Court Injunction against
proposed government regulations)
Law Offices of Carl Shusterman

12. E-Verify Program
A Solution for Employers?

Insulation from Liability?

Identity Theft?

Is E-Verify Ready for Prime Time?
The Law Offices of Carl Shusterman

13. Remote Hiring

Employer can assign a 3rd
party representative
or notary public to verify the documents

Employer continues to be liable

No verification by e-mail or photocopy.
Original documents need to be verified.
The Law Offices of Carl Shusterman

14. J-1 / F-1 Visa Holders

USCIS does not issue EAD

The documents for I-9 purposes include combination
of the following under List A :

Unexpired foreign passport number

11-digit Form I-94/I-94A number and expiration date, and:

J-1: Form DS-2019 number and expiration date of employment
authorization listed on the form

F-1: Form I-20 with the designated school official’s endorsement
for employment on page 3;

Important: Ensure that they enter their admission
number from Form I-94/ I-94A in Section 1
The Law Offices of Carl Shusterman

15. F-1 Students Working on OPT

Normally can only work until the expiry date
on EAD

Exception- If H-1B petition is filed on their
behalf, then can continue to work until
October 1.
The Law Offices of Carl Shusterman

16. F-1 on expired OPT with H-1B filed

Documents under List A

OPT EAD (Expired) along with Form-I-20 which shows
that the cap-gap extension was endorsed by the student’s
designated school official,

Valid till Sept. 30 or until the date the petition is withdrawn or
denied.

Important: You must re-verify employment
authorization when the Form I-20 cap-gap
endorsement expires- no later than October 1.
The Law Offices of Carl Shusterman

17. H-1B Extensions

Employee authorized to work while timely
filed extension petition is pending for 240
days, or until the petition is denied.

For I-9 purposes-

Write “240-Day Ext.” and record the date you
submitted Form I-129 to USCIS in the margin of
Form I-9 next to Section 2.
The Law Offices of Carl Shusterman

18. I-9s for H-1B Extensions, cont.

Retain the following documents:

A copy of the new Form I-129;

Proof of payment for filing a new Form I-129;

Evidence that you mailed the new Form I-129 to USCIS.

Receipt of the H1- B filing

Re-verify employment authorization in Section 3
once you receive a decision on the H-1B petition
The Law Offices of Carl Shusterman

19. AC-21 Portability

An H-1B employee –can start working for you as
soon as you file the Form I-129 petition for Change of
Employer

For I-9 purposes:

H-1B employee’s Form I-94/I-94A issued for employment
with the previous employer, along with his or her foreign
passport

Write “AC-21” and record the date you submitted Form
I-129 in the margin of Form I-9 next to Section 2.
The Law Offices of Carl Shusterman

20. How to Minimize Your Liability

Have An Outside Party Audit Your I-9s

After the Audit, Correct Flawed I-9s

Do Not Destroy Defective I-9s

How to Properly Correct I-9s

Training Sessions for Persons Completing I-9s

Consult USCIS Employers Handbook
The Law Offices of Carl Shusterman

21. How to Obtain Additional
Information and Stay Updated

Immigration Laws, Regulations & Procedures
are constantly changing

USCIS’ new “I-9 Central” website

USCIS’ Handbook for Employers (June 2011)

Our website –www.shusterman.com

Free, monthly e-mail newsletter – Over 60,000
subscribers
The Law Offices of Carl Shusterman