Employer Compliance 2015

A No Hype Overview of Immigration
Compliance for Employers
Tony Weigel
Weigel Law Office, LLC
Immigration & Nationality Law

Weigel Law Office, LLC Immigration &
Nationality Law
Presentation Outline
• Immigration-related Requirements Applicable to All Employers
• Civil/Administrative Penalties for Compliance Violations
• Potential Criminal Charges and Penalties for More Serious
Compliance Violations
• Enforcement Processes and Patterns
• Additional Immigration-related Compliance Requirements for
“Sponsoring” Employers
• Meeting Compliance Challenges
• Options for Assessing and Improving Compliance
• Questions & Answers

Historical Context
• Prior to November 7, 1986 – No obligation
to check immigration status, verify identity
information, or complete any forms for
purposes of employment authorization
• Employment of Unauthorized Workers
was exempted from criminal law
(harboring) under the “Texas Proviso”
Nationality Law

Immigration Reform and Control Act of 1986
• Known as “IRCA”
• Placed requirements on employers to verify
identity and work authorization of employees,
starting in Nov. 1986
• Also requires maintenance of verification efforts
• Prohibits knowingly employing unauthorized
workers and certain actions that constitute
unlawful discrimination
Nationality Law

IRCA – Relevant Legal Standards
• Standard of document review – 8 C.F.R.
§274a.2(b)(ii)(A)
– The document(s) presented should
reasonably appear to be genuine on its face
– It should appear to relate to the person
providing it
– In some instances, the government focuses
on patterns of documents presented over a
period of time (ex. Puerto Rican birth
certificates)
Nationality Law

IRCA – Relevant Legal Standards
• “Knowledge” of unauthorized work status
– Can be actual or constructive
– Actual knowledge – Employee states “I am
not legal to work in the U.S.”
– Constructive – May be fairly 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 (ex. not legal to work in the
U.S.)
Nationality Law

IRCA – Two-Page I-9 Form
• All employers required to use the 2-page form starting
May 7, 2013
• Form is 2 pages, so consider using 2-sided copies for
record-keeping purposes
• Section 1 asks for an employee to provide phone
numbers and e-mail addresses, which are optional
• Section 1 for non-citizens became more complicated
– USCIS & Alien Numbers are the same thing
– I-94 records – Can either be a card or new print-out
• The M-274 Manual was updated for use with new form
(http://www.uscis.gov/files/form/m-274.pdf)
Nationality Law

IRCA – Section 1 of I-9 Form
• Must be completed by end of the first day of work
• Employee provides his or her full name; maiden name, if
applicable; current address (street, city, state and zip);
and date of birth
• Completion of the Social Security Number is optional,
but mandatory if the employer utilizes E-Verify
• Completion of one of the status categories and insertion
of additional information (Alien #, Admission #, and
expiration date, if applicable)
• Someone may assist the employee if in need of
assistance or translation, but must sign and date the
form and provide name and address information
Nationality Law

IRCA – Section 2 of I-9 Form
• Must be completed within 3 business days of the first
date of employment, unless employment is for less than
3 days, then it must be done on the 1st
day
• After employee provides either a document from List A
or one document from List B and List C, the employer
must review the documents
• Employer records the document title, issuing authority,
document number, and expiration date for each
document, as applicable
• Employer must insert the date the employment began in
the certification block, sign and date the form, and insert
name, title, business name and address information
Nationality Law

IRCA – Section 3 of I-9 Form, Rehires
• Option exists to do a new form or re-use prior form
• If rehire is within three years of the date the existing
Form I-9 was completed, then the employer must check
whether or not the person’s work authorization has
expired
• If the work authorization has not expired, then the form
can be updated on the date of rehire by inserting the
date of rehire and signing and dating that section
• If the work authorization has expired, then the employee
must provide a valid List A or List C document and
employer must record the date of rehire, document title,
number, expiration date (if any), and sign and date the
form.
Nationality Law

IRCA – Section 3 of I-9 Form, Reverification
• Reverification is required if an existing employee initially
presented temporary work authorization documents
• Must be done before the expiration date on those
documents
• The employee must provide a valid List A or List C
document and the employer must record the document
title, number, expiration date (if any), and sign and date
the form
• Option exists to use Section 3 or portions of a new I-9
form (inserting employee’s name in Section 1 and
completing Section 3 of the new form)
Nationality Law

IRCA – Section 3 of I-9 Form, Updating
•Employers are not required to ‘update’ I-9 forms if an
employee’s name changes
•Exception: the employee’s name has changed since the
initial form was completed upon either rehire or
reverification of work authorization
Nationality Law

Nationality Law
Administrative Penalties for Violations
• Failure to properly complete, retain or present an I-9
Form: $110 to $1,100 per form
• Knowing hire or continuing to employ an unauthorized
worker: $375 to $16,000 per unauthorized worker
• Debarment from federal contracts for hiring or continuing
to employ unauthorized workers

Nationality Law
Administrative Penalties - Statistics
• 2003-2008 Statistic
– $1.5 million
• 2009-2012 Statistics
– 9,140 inspections
– Final fine orders totaling $31.2 million
• 2013 Statistics
– 3,127 worksite enforcement investigations
– 452 criminal arrests, 179 owners, managers, supervisors or HR
employees
– ICE issued 637 final fine orders totaling $15.8 million
– Debarred a record 277 businesses and individuals
• 2014 Statistics
– 1,327 inspections
– 638 final fine orders totaling $16 million
• 2015 – Fines on pace to total $16 million for Fiscal Year

Nationality Law
I-9 Related Penalties – Citizenship
Discrimination
• An employer may not unlawfully discriminate: on the basis of an individual's
national origin or citizenship status, by requesting more or different
documents, or by refusing to honor acceptable documents
• $375 to $16,000 potential fines per charge and other costs:
Back-pay, Attorney Fees, Training, Monitoring and Oversight
• In recent years, the government has pursued employers for engaging in a
“pattern or practice of citizenship discrimination by imposing unnecessary
and discriminatory hurdles to employment for work-authorized individuals.”
• Penalties:
– Over $250,000 in fines in some cases, plus back-pay for employees
– Notification, identification and back-pay to additional individuals
– Training, reporting and oversight mandates impacting everyone from HR
clerks to top management

Nationality Law
I-9, Administrative Audits
• Since 2009, there have been an increasing number of
administrative audits of employers’ I-9 records across
the U.S. conducted by the U.S. Department of Homeland
Security, Immigration & Customs Enforcement (ICE)
• ICE has primarily issued fines for failures to properly
complete and retain I-9 records
• Once audited, employers are sometimes re-audited
within 6 to 12 months
• Some cases have led to criminal investigations and
prosecutions
• Almost every audit is complaint-based from either a local
source or by direction of upper-level ICE personnel

Nationality Law
• Audit Stages
– Notice of Inspection
– Notice of Suspect Documents/Discrepancies
– Notice of Substantive or Technical Violations
– Notice of Intent to Fine
– Administrative Hearing

Nationality Law
• Notice of Inspection
– Notice is served with a Subpoena for I-9 and related business
records
– Response period, 3 business days, sometimes a bit more
– Employers can/should work with legal counsel to submit
documentation in best possible state
– After documents are submitted, it may take 1 to 3 months for an
initial response from ICE
– In some cases, ICE may ask for more documents and
information
– The goal is to provide ICE with enough information to conduct
the audit, but not more than is required

Nationality Law
• Notice of Suspect Documents/Discrepancies
– ICE will run all information through its databases, mainly from
the I-9 forms and supporting documents
– Some of the information will result in a list of employees with
‘suspect documents,’ meaning the information is not valid
– Some of the information may not match up, meaning there are
‘discrepancies’
– ICE’s Notice will identify individuals and provide a time period for
the employer to conduct one-on-one follow up regarding the
Notice information
– Some employees may be able to clear up any issues regarding
work authorization, but most are not and their employment is
usually terminated

Nationality Law
• Notice of Substantive or Technical Violations
– Notice is served identifying violations related to specific
employees’ I-9 forms
– If technical, employers are provided a 10-day period to correct
forms and avoid fines
– If substantive, ICE will issue fines according to its matrix
– Many audits involve discussions arguing that substantive
violations are instead technical

Nationality Law
• Notice of Intent to Fine
– Notice is served with a count-by-count statement of violations
and fines per violation
– Employers have 30-days to attempt to negotiate a reduction in
charges and/or fines
– Employers have the option to request an administrative hearing
to contest the charges and/or fine assessments, but it is a use it
or lose it provision, meaning failure to request a hearing within
30 days forecloses the option of a hearing
– ICE typically maintains that the most it can reduce fines is by
25% of the matrix amounts
– Depending upon the facts and the employer’s preference, it may
make sense to go to an administrative hearing

Nationality Law
• Administrative Hearing
– Before an Administrative Law Judge
– Involves standard types of discovery and motions associated
with court cases, which can mean more attorney fees
– Cases can still be settled if beyond the 30-day period, post-
Notice of Intent to Fine
– Employers and their counsel should carefully evaluate trends in
administrative cases
• Some may be very favorable in fine negotiation
• Others may seem applicable, but really aren’t
• Trends can change in favor of the government too

The Criminal Side of I-9 Compliance
There are three critical aspects to keep in mind:
•There are specific criminal statutes that apply to
all employers
•Criminal actions against employers do occur
•A high percentage of employers are not engaged
in activities that warrant a criminal investigation or
prosecution
Nationality Law

Commonly Used Statute:
•8 U.S.C. §1324a(f)(1) Prohibits engaging in a
“pattern or practice” of knowingly hiring or
continuing to employ unauthorized workers
Potential Penalties:
•Fines up to $3,000 for each unauthorized worker,
imprisonment for up to six months for the entire
pattern or practice, or both.
•Criminal misdemeanor charge
Nationality Law

•8 U.S.C. §1324(a)(1)(A)(iii), General “harboring” –
attempt to or actually conceal, harbor, or shield
from detection an unauthorized alien
Potential Penalties (8 U.S.C. §1324(a)(1)(B):
•Basic: Fines or imprisonment up to 5 years, or
both;
•If done for commercial or private financial gain:
Fines or imprisonment up to 10 years, or both;
•Enhanced penalties if action results in injury or
death
Nationality Law

•8 U.S.C. §1324(a)(3)(A), Prohibits knowingly
hiring for employment, during any 12-month
period, at least 10 individuals with actual
knowledge they are not work authorized
Potential Penalties (8 U.S.C. §1324(a)(1)(B):
•Fines or imprisonment up to 5 years, or both
Nationality Law

•8 U.S.C. §1324(b), Asset seizure and forfeiture for
felony violations
•Applicable to violations of 8 U.S.C. §1324(a), ex.
harboring
•Not applicable to administrative I-9 penalties or
criminal misdemeanor charges
Nationality Law

Less Commonly Used Statute:
•8 U.S.C. §1001(a), Prohibits knowingly or willfully
making false or fraudulent statements or
concealing information
•Can be applied to certifications made during I-9
process
Potential Penalties:
•Fine up to $250,000, imprisonment up to 5 years,
or both
Nationality Law

Criminal Enforcement
Common Types of Activities that are present in
Criminal Enforcement Actions:
•There is actual or constructive knowledge that an
employee or a group of employees are not
authorized to work in the U.S.
•No effort is made to complete an I-9 form
•The employer may: pay wages in cash, forego
paying FICA or other required deductions, ignore
minimum wage and overtime requirements, or set
up “sham” labor contractor arrangements
Nationality Law

Criminal enforcement investigations and
prosecutions can occur:
•Following an administrative I-9 audit;
•Concurrently with an administrative I-9 audit; or
•Independent of an administrative I-9 audit.
Nationality Law

Possible signs of a criminal investigation:
•At the completion of an I-9 audit, ICE warns of a
re-inspection within the near future (ex. 6 months)
•An employee with known work authorization
problems re-applies for employment
•Former employees or subcontractors call wanting
to discuss prior work arrangements
•An out-of-the-ordinary applicant shows up
•Out of the blue questions about employer
compliance from various parties
Nationality Law

If an organization suspects it is the subject of a
criminal investigation or becomes aware of
potentially criminal activity relating to the
employment of unauthorized workers, it should:
•Engage competent legal counsel, to include
criminal defense and immigration compliance
counsel,
•Focus on assessing the situation first, and
•Manage information and communications
accordingly.
Nationality Law

Compliance for “Sponsoring” Employers
If an organization sponsors an individual for a work
visa, additional requirements apply:
•Example, an H-1B visa petition for a professional
worker requires an employer to:
– Pay fees associated with sponsorship,
– Pay the “required wage” amount,
– Maintain Public Access files for inspection and
consent to governmental “site visits,”
– Notify the government if the employment terminates
before the end of the sponsorship
– In some instances, pay for the worker’s return
transportation costs
Nationality Law

Nationality Law
I-9 Do’s & Don’ts
Don’t:
• Assume the process will manage itself
• Allow this to become one of the lowest priorities in HR
• Engage in snap decisions or make regrettable statements
• Repeat the same mistakes, or worse, create more errors in the
process of a self-audit
Do:
• Get a fresh set of eyes to review records and practices
• Identify areas of need and conduct focused training
• Identify best processes and personnel to handle the job
• Establish periodic review processes to monitor and improve
compliance

Nationality Law
Challenges for Organizations
Small Organizations:
• Lack specialized staff, typically have a small number of I-9s, and
may have less formal records systems
Larger Organizations:
• Possess specialized staff, have a larger number of I-9 records, and
more formal records, but communication and process management
can break down
Organizations with Multiple Worksites:
• Employer representatives are performing the I-9 function and
creating records in multiple sites, possibly without secondary review,
along with communication and process management challenges

Nationality Law
Assessing & Improving Compliance
Identify “Helpful” Resources
Manage Self-Audit Risks
Establish Training and Oversight

Nationality Law
Hypothetical Scenarios
Small construction company – Never an I-9, knows workers
don’t have legal status, provides housing and
transportation, one or more of the employees come into
contact with local law enforcement for whatever reason

Nationality Law
Larger organization – Regularly does I-9s, professional HR
staff, no knowledge of work authorization at management
or HR levels, but first-line manager regularly calls an
employee by a name distinctly different from name on
organization paperwork – Jeff Jones vs. Steve Smith

Nationality Law
Medium-sized organization – Relatively high percentage of
ethnic workforce, issues with one worker, individual does
not directly engage with HR/management – instead there
are one or two of the workers who intervene by providing
new documents and a new application for the employee in
question

Nationality Law
Larger organization – Regularly does I-9s, professional HR
staff, no knowledge of any work authorization problems at
any level, employer terminates employment of an
employee for cause, during exit interview, she states that at
least one other worker in her department is using a false
identity

Nationality Law
Questions & Answers
Contact Information
Tony Weigel
Weigel Law Office, LLC
tony@weigellawllc.com
816.516.6555
www.weigellawllc.com

Supplemental Information
• Electronic I-9 Form Systems
• E-Verify
Nationality Law

Nationality Law
Electronic I-9 Creation and Storage Systems
• The law has authorized creation and/or storage of I-9 forms by
electronic means, but be aware that the law is a bit complex
because of 3 distinct periods of differing standards:
• Period 1 - April 25, 2005 to June 14, 2006 – Authorizing law
provided no guidance, so anything (within reason) would satisfy the
law
• Period 2 – June 15, 2006 to August 22, 2010 - On June 15th, an
Interim Regulation was released that set some exacting, yet
ambiguous standards for compliance
• Period 3 – August 23, 2010 to Present – A final regulation was
issued that answered some questions, but left others unanswered –
even the established vendors have to guess!

Nationality Law
If an electronic system is utilized and an employer is audited,
ICE will request the following from an employer:
•Name and provider of software vendor
•Internal business practices/protocols re: generation, use, storage,
security, inspection and quality assurance for electronically
generated forms
•Indexing system identifying links between information and
employees
•Documentation regarding electronic signatures
•Audit trail information re: record creation and modification
•A live demonstration of the system
•Beware: Pre-population of Section 1 is a hot-button issue!

Nationality Law
The Bellwether Enforcement Case – Abercrombie & Fitch, Sept. 2010
– Company utilized an electronic I-9 system for completion and storage of
forms for new hires
– Following an administrative audit, it paid a fine totaling $1,047,110.00
for I-9 violations, none of which were for employing unauthorized
workers!
– Fines were assessed for “numerous technology-related deficiencies”
– Quote from ICE official: “Employers are responsible not only for the
people they hire but also for the internal systems they choose to utilize
to manage their employment process and those systems must result in
effective compliance.”
Be Very Careful in Selecting and Utilizing an Electronic System!

Nationality Law
E-Verify – Overview
• Originated in 1996 as “Basic Pilot” and a government-
operated, electronic means of obtaining secondary
verification of an employee’s work authorization
• E-Verify is utilized by approximately 480,000 U.S.
employers, roughly 5%
• Under federal law, use of E-Verify is optional for most
employers, with the exception of certain federal
contractors and subcontractors
• Over 25 states have various forms of E-Verify
requirements for all employers in the state or based
solely upon award of a non-federal contract or receipt of
funding

Nationality Law
E-Verify – How It Works
• Participating employers enter into a Memorandum of
Understanding (MOU); designate users (Program
Administrator, Genl. Users), who must undergo online
training; and provide notice of E-Verify use (Posters)
• I-9 form must be completed with SSN and photo ID,
copies of US Passports and Passport Cards; ‘Green
Cards’ (I-551 documents), and EAD’s (I-765)
• Employer submits a case query to system and it is
processed using data from the Social Security
Administration and Dept. of Homeland Security
• Query typically results in a confirmation and closes out
case, keeping a copy of confirmation or writing case
number on form, but not always

Nationality Law
E-Verify – How It Works
• In some cases, a tentative non-confirmation (TNC)
may result
• The employer must:
– Provide notice of TNC to the employee, who chooses whether or
not to contest
– Provide TNC documentation for employee follow up
– Watch the E-Verify system for updates
• Case query can result in a confirmation, or a final non-
confirmation (FNC)
• In a small number of cases, the FNC result can be
challenged and corrected, but most FNC cases result in
termination of employment

Nationality Law
E-Verify – Management
An employer’s most common and fundamental E-Verify
Errors:
• Failure to review and solidify basic I-9 processes
• Failure to think beyond simply getting started
Tips for a “Freer & Easier” E-Verify Experience
• Understand that the system combines a number of
manual and automated tasks using inconsistent
databases – it is a “work in progress” and has been for
15 years
• Understand the long-term training and oversight needs
• Develop a support system for use evaluation and
improvement

Nationality Law
E-Verify – Monitoring & Compliance
• E-Verify has had systemic problems with use of
fraudulent documents by both employers and employees
• Employers have failed to use system in accord with the
MOU
• The result has been continual enhancements in
Monitoring & Compliance, which the employer consents
to in the MOU
• Employers may be contacted by E-Verify, subjected to a
‘bench audit’ and on-going oversight

Employer Compliance 2015

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