Form I-9 Employment Verification Compliance

ByM. Mercedes Badia-Tavas

Badia-Tavas Law Group, Ltd.8 West Monroe, Suite 1006

Chicago, IL 60603Tel: 312-422-0838

mercedes@btlawgroup.net

The Legal FrameworkEmployer 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 listAdded intent and purpose to discriminate for document abuse

Knowledge and PenaltiesAn 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 ActActual 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), 1274a.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 alien2nd offense civil $3200 to $6500Any offense after 2nd $4500 to $16000Pattern 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 acceptedEvery offense thereafter - $3000 to $6500 for each document

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-yearMoney laundering – Felony – 20-year prison sentenceAlien Smuggling Labor Violations

Penalties – Mitigating / Aggravating Factors

Size of employer’s business; Good faith of the employer to comply; Seriousness of violation; Whether or not the individual was an unauthorized alien; and History of previous violations

Unfair Immigrant-Related Employment Practices (UIREP)

Compliance viewed & balanced against discriminationIRCA prohibits discrimination based on national origin, citizenship status, or “Document Abuse” with knowledge and intent to discriminate IRCA interplays with other civil rights and employment laws 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 Comply?

Timely and complete Form I-9 procedures;Review original documents presented and copy original documents from list to attach to Form I-9;Follow-up on all reverification requirements;Acting upon notice from DHS/SSA or other agency on an employees documents;Written policy adopted by management; andRegular 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 11/06/1986.Employee in person fully completes Section 1 on 1st day of hire and within 3 days verification completedEmployer 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 eligibility Maintain I-9 for 3 years from date of hire, OR 1 year after termination, whichever is laterElectronic 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 ManualCAN 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 “New” Employee

http://www.uscis.gov/files/form/i-9.pdfCompliant with IIRIRA and other recent legal changes for list of acceptable documents.Use in conjunction with M-274 - Handbook for Employers m-274.pdfUse for reverification of documents for existing employees by completing Section 1 and Section 3 only and attach to original I-9 form.

Documents for Form I-9 Compliance – Chart & Manual

List A – Identity and Employment Eligibility

OR

List B – Identity Only

AND

List C – Employment Authorization only

Reverification – Tickler System

Employee lists an expiration date in Section 1 for work authorization; OREmployee’s work eligibility document in section 2 contains an expiration dateFailure to reverify is a paperwork violation; if employee is undocumented, then employer could be charged with knowingly employing an unauthorized alien.

Variations – requires ticklerReceipt 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 present)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 card.

Variations - StudentsF-1 Student eligible for curricular practical training - No EAD is issued but permitted if endorsed on I-20 CertificateF-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 approvalF-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 ACTA photo ID, or a non-photo ID that includes full legal name and birthdate.Documentation of birth date.Documentation of legal status and Social Security numberDocumentation showing name and principal residence address.

Digital images of each identity document stored in each state DMV database.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 foreign passport.Most States have resisted implementation because of the cost and privacy issues. Some are trying to comply.

Common ErrorsSection 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 dateSection 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., H-1B status)?" 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 avoided.

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 Security numbers. Voluntary system except some states & Federal Government contractors required to participateEmployer agrees to MOU – a Memorandum of Understanding with DHS/ICE/SSA

Paper or Electronic I-9 Forms must still to be usedSSA verification is completed first then DHSIdentity 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

E-Verify -employment authorized categories are not automatically entered into SSAEmployer errorsDHS errors – incorrect classification at entry by CBPUnauthorized workers

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 precluded. 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 finesDHS/ICE Office of Investigations & 2 offices of DOL –Wage & Hour Div. and Office of Federal Contract ComplianceLead 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, security, manager?When? How? Telephone, e-mail, pager, etc.What are the steps for the legal team?

ICE Worksite Enforcement–cont.

Criminal Search Warrant should be issued that is expansive, but must be reviewed for accuracy and content.

ICE Worksite Enforcement –cont.

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 –cont.

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.

Hypotheticals

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 academic year?#4 – What if the FN marks LPR (no A#) and presents an EAD?

Hypos – Cont.

Discrimination #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 taken?#3 – As acceptable documents, FN presents an unexpired EAD with future expiration date?

Hypos -#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 this correct?#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?

Conclusions

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; andSeek Legal Counsel if in doubt on documents or procedures.