Stephen Davis with Maynard Cooper Gale

1. Immigration Compliance Update:
Recent Developments in Immigration Law
Involving the Workplace
Stephen Davis

2. Recent Developments in Four Areas
▼ Internal I-9 Audit Tips
▼ Constructive Knowledge
▼ E-Verify and I-9 Decisions
▼ Proposed E-Verify Changes

3. Civil Fines and Criminal Penalties for I-9/Immigration Violations

4. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼In December 2015, U.S. Immigration and Customs Enforcement
(“ICE”) and the U.S. Department of Justice (“DOJ”) Civil Rights
Division issued joint guidance for employers conducting internal
Form I-9 audits.
▼The guidance addresses some key concerns and issues frequently
encountered in the course of in-house audits, including the
purpose of the audit, how to correct certain errors on the I-9 and
how to handle potential unauthorized workers going forward.
▼Joint guidance available at:
www.justice.gov/crt/file/798276/download

5. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼What information should an employer communicate to its
employees before and during an internal audit?
▼ The guidance recommends that the employer inform the employee in writing
that the employer will conduct an internal I-9 audit, explain the scope and
reason for the internal audit, and state whether the internal audit is
independent of or in response to a government directive.
▼ When a deficiency is discovered in an employee’s Form I-9, the employer
should notify the affected employee, in private, of the specific deficiency.
▼ Also provide the employee with a copy of the deficient I-9 and give the
employee a reasonable opportunity to correct it.

6. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼What is the proper procedure for correcting errors or omissions
found on a Form I-9?
▼ Section 1 of the I-9 Form
▼ An employer may not correct errors or omissions in Section 1- only the employee
can.
▼ The best way to correct the error is to have the employee: (1) draw a line through the
incorrect information; (2) enter the correct or omitted information; and (3) initial
and date the correction or omitted information.
▼ If the employee no longer works for the employer, the employer should attach
to the existing I-9 Form a signed and dated statement identifying the error or
omission and explain why corrections could not be made (for example, the
employee no longer works for the employer).

9. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼Sections 2 and 3 of the I-9 Form
▼ An employer should correct errors in these sections by following the same
process: (1) mark through the error; (2) enter the correct information; and (3)
initial and date.
▼Do not erase text or use correction fluid.
▼If there are multiple errors, fill out the correct information on a new I-9
Form and attach it to the previously-completed form. Also attach a brief
explanation of the changes and sign and date the explanation.

10. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼What if the internal I-9 audit reveals that an employee did not
present proper documentation?
▼ The employer should ask the employee to present documentation to satisfy the
requirements and complete Section 2 or 3 (whichever is applicable) on a new I-
9 Form.
▼ Do not backdate the new I-9.
▼ Staple the new I-9 with the prior I-9 and include a signed and dated
explanation of the corrective action taken.

11. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼What if the employer uses E-verify and the internal audit reveals
that the employer did not create an E-Verify case for a certain
employee?
▼ The general rule (unless you are a federal contractor) is that you cannot run
existing employees through E-Verify.
▼ Under this circumstance, if the employer learns that it mistakenly failed to
create a case in E-Verify, the employer should immediately create a case for
the employee.
▼ May an employer request specific documents when correcting a
Form I-9 as a result of an internal audit?
▼ No. Although an employer may tell an employee that a particular document
called into question by the internal audit may not be used again, the employer
should not request specific documents.

12. DOJ and ICE Publish Joint
Guidance on Internal I-9 Audits
▼Is an employer required to terminate employees who, as a result of
the employer’s internal Form I-9 audit, disclose that they were
previously not authorized to work, even though they are authorized
to work now?
▼ No. This is not required by the law.
▼ In cases where an employee was not previously authorized to work (and the
employer had no knowledge thereof), but the employee is authorized now, the
employer is not required to terminate.
▼ However, the employer should be careful to apply its “honesty policy” (if
applicable) in a consistent manner.
▼ If the employer decides to retain the employee, a new Form I-9 must be
completed, attached to the prior I-9 with a signed and dated explanation.

13. Current I-9 Form Remains
Valid After Expiration Date
▼USCIS announced recently that the current version of the I-9 Form
will remain in use beyond its March 31, 2016 expiration date.
▼Employers should continue to use this I-9 Form, which bears an
“edition” date of March 8, 2013, until further notice.
▼USCIS is working on a proposed “smart” PDF version of the I-9
Form with drop-down menus and detailed instructions embedded
in hover text.
▼The revised I-9 Form will not be released until it clears the federal
approval process, which will probably be several months from now.

14. Constructive Knowledge
▼When does an employer have “constructive knowledge” that an
employee is not authorized to work?
▼Constructive knowledge is defined as “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 CFR 247
▼Guidance in this area of the law is constantly changing and can be
interpreted differently by different auditors or agents.
▼Check with immigration counsel and/or the I-9 employer helpline
before taking action on constructive knowledge issues.

15. Constructive Knowledge Pointers
▼Constructive knowledge can arise where an employer:
▼ Fails to complete or improperly completes the Employment Eligibility
Verification Form, I-9;
▼ Has information available to it that would indicate that the alien is not
authorized to work, such as Labor Certification and/or an Application for
Prospective Employer; or
▼ Acts with reckless and wanton disregard for the legal consequences of
permitting another individual to introduce an unauthorized alien into its work
force or to act on its behalf.
8 CFR 274a.1(l)(1)

16. Constructive Knowledge Hypothetical #1
▼An anonymous person called human resources and left a message
stating that “all of the workers on assembly line 8 are illegal.”
▼Constructive knowledge under this scenario? Is the employer
required to take any action based on these anonymous
allegations?
▼ NO – This tip probably does not rise to the level of constructive knowledge.

17. Constructive Knowledge Hypothetical #1
(Continued)
▼The employer needs to evaluate the credibility and the specificity of
the information to determine whether further inquiry is required.
▼While an anonymous tip does not lack credibility merely by virtue
of being anonymous, the tip must be more specific for the
employer to act further.
▼Moreover, this tip does not identify any particular employee by
name or provide any basis for the caller’s knowledge.
▼Finally, because the tip is anonymous, the employer does not have
the ability to follow up with the caller to obtain additional
information about the reason or basis for the allegations.

18. Constructive Knowledge Hypothetical #2
▼A benefits specialist calls a human resources representative and
tells her that the Social Security Numbers of six employees were
rejected because of discrepancies.
▼Constructive knowledge under this scenario?
▼ MAYBE – This is a situation that requires the employer to investigate further
to determine the reason for the discrepancy.

19. Constructive Knowledge Hypothetical #2
(Continued)
▼Benefits specialists are often the ones who would notice a discrepancy in
filing tax paperwork, health insurance, retirement fund contributions, etc.
▼Based on this information, the employer would need to determine if the
Social Security Number being used is valid and belongs to the specific
employee.
▼This should be done in a non-discriminatory manner and fully documented,
as it is possible that the employees are victims of identity theft rather than
being the ones using someone else’s number.
▼The best course of action is to notify the employees and let them know
what has occurred and ask them to verify that their information on file is
correct. If the employees confirm that the Social Security Number is
correct, the employer should give the employee sufficient time to retrieve
evidence from the Social Security Administration (“SSA”).

20. Relationship Between Constructive
Knowledge And Document Abuse
▼Employer must avoid “document abuse” and the risk of being fined
by the U.S. Department of Office of Special Counsel (“OSC”).
▼ If the employer requests specific documents or more documentation
from the employee that is required by law, the employer could be
found liable for document abuse.
▼Avoid document abuse by developing a consistent strategy:
▼ Remember that the employer has an interest in avoiding a disruption
to the employment relationship.
▼ The employer is not expected to be a detective ferreting out all
unauthorized workers from its workplace.
▼ In situations where the employee presents documents evidencing
employment eligibility from the acceptable list of documents on Form
I-9, those documents are prima facie proof of the employee’s eligibility
to work in the United States.

21. General Strategies to Follow in Constructive
Knowledge Situations
▼There are some safeguards the employer may take to avoid
penalties for discrimination while still complying with the
constructive knowledge standard when problem situations arise:
▼ Do not reject a document simply because it varies from the version
illustrated in the government’s instruction booklet.
▼ Do not further inquire about employment eligibility or request or
require additional documents based on an employee’s physical
appearance or accent.
▼ Do further inquire if the employee presents a “receipt” showing that
he or she applied for a List A or C document.
▼ Do further inquire if the document presented shows obvious signs of
being tampered with or forged, or the name or descriptive information
contained in the document does not relate to the employee.

22. Recent Trends in Document Abuse and
Constructive Knowledge Situations
▼Under the Obama Administration, the OSC is increasingly using
individual employee document abuse complaints as a basis for
conducting wall-to-wall investigations of an employer’s I-9 and E-
verify practices and procedures.
▼More recently, in June 2015 the OSC settled an immigration-related
discrimination claim against Abercrombie & Fitch for approximately
$160,000.
▼ The investigation found that Abercrombie required a non-U.S. Citizen
to produce specific documentary proof of her immigration status to
verify her employment eligibility.
▼ Specifically, OSC found that Abercrombie required the employee to
present her green card.
▼ This is a clear case of document abuse.

23. I-9 Compliance Update – OCAHO Clarifies
Meaning of “Independent Contractor” for I-9
Purposes
▼U.S. v. Saidabror Siddikov, 11 OCAHO no. 1257 (published 8/20/15)
– Office of the Chief Administrative Hearing Office (“OCAHO”) final
decision and order holding that the government did not show that
the individuals named in the complaint were ever employees of the
employer, and thus, employer was not required to prepare I-9s for
them.
▼ The general rule is that independent contractors are not required to
complete an I-9.
▼ The case involved a U.S. Immigration and Customs Enforcement
(“ICE”) complaint against an employer who failed to present I-9 forms
for six individuals in response to a Notice of Inspection issued under
the employer sanctions provision of the Immigration and Nationality
Act (“INA”), as amended by the Immigration Reform and Control Act of
1986 (“IRCA”), 8 U.S.C. § 1324(a)(2012).
▼ The owner argued that all six individuals were independent contractors
and I-9s were not required for them.

24. I-9 Compliance Update – OCAHO Clarifies
Meaning of “Independent Contractor” for I-9
Purposes (Continued)
▼OCAHO looked at the “totality of the circumstances” to determine whether
the employees were independent contractors or employees.
▼Specifically, OCAHO observed that:
▼ None of the work was performed on the employer’s premises;
▼ There was no supervision or control by the employer;
▼ Most of the relationships with the six individuals were short lived;
▼ The individuals had been treated all along as autonomous;
▼ Two of the individuals apparently operated their own businesses;
▼ Two others had regular jobs and moonlighted doing the floor jobs on the side;
▼ While the individuals did not provide their own supplies or equipment, the
employer did not provide their supplies or equipment either; these were provided
by the customers;
▼ The choice of whether payment was made at an hourly rate or by the job was the
customers’ choice as well; and
▼ The individuals did the work according to their own means and methods without
control by the employer, their services were available to others, and they worked
for different clients at the same time.

25. I-9 Compliance Update – OCAHO Clarifies
Meaning of “Independent Contractor” for I-9
Purposes (Continued)
▼Considering the totality of the circumstances, OCAHO found that, apart
from the fact that the actual work itself was unskilled, the remainder of the
regulatory and common law factors pointed in the direction of independent
contractor status for all six individuals. As such, they were not required to
fill out an I-9 form for the employer.
▼Bottom line – An employer should not blindly assume that an individual
does not need to fill out an I-9 because he or she is simply labeled an
“independent contractor.”
▼ It is important to determine if, in the event of an I-9 audit, the government would
apply the above tests and determine that an individual is actually an employee
for I-9 purposes.
▼ Further, employers must understand that, while true independent contractors are
not required to complete an I-9, employers may still be liable for knowingly
employing unauthorized workers if they have actual or constructive knowledge
of the independent contractors’ unauthorized status.

26. I-9 Compliance Update – OCAHO Decision
Holds that E-Verify Participation does not
Entitle Employer to Blanket Protection
▼U.S. v. Golf International, 11 OCAHO no. 1214 (published 3/26/14)
▼ Employer was a semi-private golf club in Scottsdale, Arizona whose I-
9 forms were audited by ICE.
▼ In the course of the audit, 157 I-9s were produced for active and terminated
employees. The employer was charged with failure to sign Section 2 of 107
I-9s, of which 93 were entirely left blank.
▼ In addition, the employer was charged with failure to ensure that employees
had properly completed Section 1 of the I-9 in 11 instances. In the course of
the audit, the employer corrected the omissions in Section 2 of the I-9s and
submitted the information to E-Verify.
▼ As a defense to their I-9 errors, the employer asserted that because it used E-
Verify, it was entitled to a rebuttable presumption that it had not violated the
employment authorization verification requirements of Section 274A of the INA.
▼ The employer also argued that its use of E-Verify was sufficient to accomplish
the verification and attestation requirements in Section 2 of each I-9 and that
failure to complete Section 2 had been excused.

27. I-9 Compliance Update – OCAHO Decision
Holds that E-Verify Participation does not
Entitle Employer to Blanket Protection
(Continued)
▼OCAHO disagreed. It held that the employer’s use of E-Verify did not
provide it with a “blanket protection” from fine proceedings for failure to
properly complete an I-9 form for each new employee.
▼The decision further stated:
▼ “An employer’s first responsibility in [E-Verify] is, in fact, to properly complete an
I-9 form for each new employee. As ICE points out, the E-Verify Memorandum of
Understanding that must be signed by a participating employer provides that ‘The
Employer understands that participation in E-Verify does not exempt the Employer
from the responsibility to complete, retain, and make available for inspection
Forms I-9 that relate to its employees.’”
▼Takeaway – All employers, regardless if they are registered for E-Verify,
must be careful and consistent when completing I-9s for all employees.
Proper use of E-Verify can protect the employer if it is later determined that
an employee is not authorized to work, but E-Verify does not insulate
employees from I-9 errors.

28. E-Verify – Proposed Changes Regarding Re-
Verification of Employees
▼U.S. Citizenship and Immigration Services (“USCIS”) recently
announced proposed modifications to the E-Verify employment
eligibility program that would require participating employers to re-
verify employees whose work authorization has expired.
▼Currently, employers are only required to re-verify employees using
the I-9. Under the proposed changes, employers would also be
required to use the program to verify the work eligibility for
workers employed prior to the company participating in E-Verify.
▼ This is an entirely new step for E-Verify, as employers currently only
verify new employees who are hired after the employer has joined E-
Verify.
▼Logistically, the proposed changes would require the following:
▼ When an employer must re-verify an employee (through Section 3 of
the I-9) whose temporary work authorization is expiring, the employer
will have three business days after completing the re-verification to
open an E-Verify case inquiry.

29. E-Verify – Proposed Changes Regarding Re-
Verification of Employees (Continued)
▼If a Tentative Nonconfirmation (“TNC”) is received, the employer
must follow the same procedures that apply for TNCs for newly
hired employees.
▼ Therefore, the employer will meet with the employee and provide
the employee with an opportunity to contest the TNC. If the TNC is
resolved, the employer may continue to employ the individual.
▼ If the TNC is not resolved, E-Verify will issue a Final
Nonconfirmation (“FNC”). The employer then must inform E-Verify
of whether the employee continues to be employed.
▼ If the employer does not terminate the employee, the employer
may be deemed to have knowingly employed someone who is not
authorized to work lawfully in the United States. If the Department
of Homeland Security (“DHS”) audits, the employer also may be
fined at a higher rate.

30. E-Verify – Proposed Changes Regarding Final
Nonconfirmation (“FNC”) Formal Reviews
▼ In addition to the proposed re-verification changes, USCIS also proposed a formal
review process for FNCs.
▼ Under current procedures, the E-Verify program provides a formal process to contest
the TNC, but not the FNC.
▼ Under the new proposal, DHS will establish a procedure for review of the FNC. The E-
Verify system will generate a written notice confirming the FNC. The FNC Notice also
will state that the employee may request that DHS or SSA (if SSA is the source of the
nonconfirmation) review the evidence and FNC determination. DHS and SSA may ask
for additional information from the employee during the review.
▼ The employer must provide a copy of this FNC Notice to the employee (if still
employed) and also attach the FNC Notice to Form I-9. If the employee has provided an
e-mail address in section 1 of the Form I-9, DHS also will e-mail the FNC notice to the
employee.
▼ The employee may request FNC review even if: (1) the employee did not contest the
TNC or (2) the employee contested the TNC but failed to visit the SSA or call DHS
within the time period allowed. DHS will inform the employer when a FNC review is
commenced and of the result of such a review. The employer may choose to terminate
the employee after the FNC is received. DHS will not require that the employer wait for
the employee to request FNC review or for the agency to issue a decision on the FNC
review.

31. Questions?
Stephen Davis
(256) 512-0101
sdavis@maynardcooper.com