IMMIGRATION: I-9 Employer Compliance Counseling & Defense

PROHIBITION AGAINST KNOWINGLY EMPLOYING UNAUTHORIZED ALIENS
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All U.S. employers are required to verify that each person they employ is authorized
to work in the United States, either by verification of their status as a U.S. citizen, permanent resident, employment authorized visa, or other employment authorization document.

There can be severe penalties for noncompliance with immigration law. The following
is not intended to be legal advice pertaining to your situation and should not be construed as such. The information provided is intended merely as a general overview with regard to the subject matter covered.
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In this article . . . . . .

1. EMPLOYER FORM I-9 RESPONSIBILITIES
UNDER THE IMMIGRATION REFORM &
CONTROL ACT OF 1986 (IRCA)

2. MONETARY AND CRIMINAL SANCTIONS
AGAINST EMPLOYERS FOR I-9 VIOLATIONS

3. BEGINNING 12-20-2004, CIS EXPANDS THE I-9
VERIFICATION PILOT PROGRAM NATIONWIDE

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This is a brief but important summary of the provisions of the Immigration Reform and Control Act of
1986 ("IRCA", or the "Act") which relate to employers. The summary does not purport to be a treatise on the subject and may not cover every aspect of IRCA, such as features applicable to a limited number of employers. It is intended to provide general guidance concerning the requirements of the law, but exceptions or different requirements may apply depending upon individual circumstances. Consult competent immigration counsel before proceeding with an I-9 program for your company.
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BASIC IMMIGRATION REFORM AND CONTROL ACT (IRCA)
EMPLOYER-RELATED REQUIREMENTS

Employers should take note of four requirements imposed by IRCA:

1. Prohibition from knowing hiring, recruiting for a fee, or referring for a fee an alien not
authorized to work in the United States.

2. Prohibition of continuing the employment of an employee, knowing that the employee has
become an unauthorized alien with respect to that employment.

3. Requires employers and recruiters for a fee ("recruiter") and referrers for a fee ("referrers") to:

a. Verify BOTH the identity and the eligibility for employment
of all individuals hired, recruited or referred,

and to

b. Fully and properly complete and sign an INS Form I-9 with
respect to each of those individuals within three days of hire.

4. Prohibits discrimination on the basis of national origin, citizenship, or "intending citizen" status.

PROHIBITIONS

Hiring, recruiting for a fee, or referring for a fee, or continuing to employ an individual hired with
actual knowledge that the individual is not authorized to work is unlawful. All employers, recruiters
and referrers are covered by the Act, regardless of the number of employees they employ or refer.

There is no duty to make inquiry into the work authorization except as required by the verification
procedures described below. Persons who come to the attention of the employer as being
unauthorized to work in the United States must be terminated if the employer discovers by any
means that the employee is unauthorized, or if the employer knows or discovers that the
employee's previous work authorization has expired.

The U.S. Citizenship & Immigration Services (CIS) can investigate on its own initiative or on
written complaint. No advance notice is required and no search warrant is necessary to examine
the I-9 forms.

EMPLOYER'S REQUIREMENT TO VERIFY BOTH
IDENTITY AND ELIGIBILITY FOR EMPLOYMENT

Employers must verify the identity and eligibility for employment of, and complete a Form I-9
for all employees, including those who are U.S. citizens and who have been hired after
November 6, 1986.

This requirement pertains to ALL employees hired, even those known to the employer to be
U.S. Citizens. No one is exempt from the I-9 reporting requirement. All employers are covered.
The only exempt employees are domestic workers in a private home who work on a sporadic or
intermittent basis. Compliance with the verification requirements establishes a rebuttable
affirmative defense to a claim that the employer knowing hired an unauthorized alien.

For self protection, the employer should make photocopies of the documents ALL employees
give them as verification of work authorization and staple them to the Forms I-9.

Verification is not required of job applicants, but only of those actually hired. Forms I-9 are
available from CIS, and can be reproduced in volume, without penalty, by photocopying,
or at a printer of the employer's choice. Employers may designate agents, including outside
parties, to perform the verification process, however, they remain liable for any failure of an
agent to satisfy the requirements of the law.

THE FORMALITIES OF FORM I-9

For all employees hired after May 31, 1987, Forms I-9 must be completed within three (3)
business days of hire. For purposes of the Act, "hire" means the actual commencement of
employment. At the option of the employer, verification may be completed earlier, at the time
of the job offer or an individual's acceptance of employment. The employee must complete the
"employee Information and Verification" portion, and sign it in the proper place, at the time of
hiring.

Within three (3) business days of hire, the employer must examine documentation
presented by the employee establishing identity and employment eligibility and complete the
"Employer Review and Verification" section of Form I-9, signing it in the proper place.

If an employee is hired for a duration of less than three (3) business days, the employer must
complete Form I-9 before the end of the employee's first working day.

Individuals may present one document to establish both (1) identity and (2) eligibility for
employment, or separate documents for each requirement. The employer, recruiter or referrer
must see the original documents. The requirement is not satisfied by examining a copy or
recording a recited document number. (For example, if an employee uses Social Security card
to establish employment authorization, the employer must see the original card. An employee's
knowledge of his or her Social Security number is insufficient. If an individual is unable to
present the required documentation within the three day period, the individual must present a
receipt or receipts reflecting his or her application for acceptable documentation within three days
of hire and present the documents within twenty one (21) days of hire.

There is no requirement under the statute that an employer, recruiter or referrer make copies
of the documentation but is may copy the documents presented, even if they state on their face
that copying is unlawful. If copies are made, they must be kept with the I-9 Forms, and
any copied documentation should be kept in a separate file, apart form personnel files. That way,
should CIS agents come to inspect, the forms will be handy in one place.

DOCUMENTS WHICH ESTABLISH BOTH
IDENTITY AND ELIGIBILITY FOR EMPLOYMENT

• 1. United States Passport
  
  
• 2. Certificate of United States Citizenship (Form N-560 or N-561)
  
  
• 3. Certificate of Naturalization (Form N-550 or N-570)
  
  
• 4. Unexpired foreign passport which: Contains an unexpired stamp which reads "Processed
  for I-551. Temporary Evidence of Lawful Admission for permanent residence. Valid until
  _[date]_ employment authorized"; or has attached thereto a Form I-94 (little white card)
  bearing the same name as the passport and contains an employment authorization stamp,
  so long as the period of endorsement has not yet expired and the proposed employment
  is not in conflict with any restrictions or limitations identified on the Form I-94.
  
  
• 5. Alien Registration Receipt Card (Form I-151) or Resident Alien Card (Form I-551)
  (commonly called a "Green Card"), provided that it contains a photograph of the bearer.
  Note that "Green Cards" are not green. They may be white, pink, or gold with holograms.
  An employer should not accept the old green cards that have the squiggly lines running
  access them, as that version of the card is no longer acceptable for identification. Presently,
  most "Green Cards" have a 10-year expiration date. Employers should make sure the card
  is unexpired.
  
  
• 6. Temporary Resident Card (Form I-688).
  
  
• 7. Employment Authorization Document (Form I-688-A).

DOCUMENTS WHICH ESTABLISH IDENTITY ONLY

• 1. State-issued driver's license or state-issued identification card containing a photograph.
  
  
• 2. School identification card with a photograph.
  
  
• 3. Voter's registration card.
  
  
• 4. United States military card of draft record.
  
  
• 5. Identification card issued by federal, state or local government agencies.
  
  
• 6. Military dependent's identification card.
  
  
• 7. Native American tribal documents.
  
  
• 8. United States Coast Guard Merchant Mariner's Card
  
  
• 9. Driver's license issued by a Canadian government authority.

DOCUMENTS WHICH ESTABLISH EMPLOYMENT AUTHORIZATION ONLY

• 1. Social Security card, other than one which has printed on its face "not valid for
  employment purposes." Note: This must be a card issued by the Social Security
  Administration; a facsimile such as a metal or plastic reproduction is not acceptable.
  
  
• 2. An original or certified copy of a birth certificate issued by a state, county, or
  municipal authority bearing an official seal.
  
  
• 3. Unexpired CIS employment authorization.
  
  
• 4. Unexpired re-entry permit (INS Form I-327).
  
  
• 5. Unexpired Refugee Travel Document (INS Form I-571).
  
  
• 6. Certification of Birth Abroad issued by the U.S. Department of State (Form DS-1350).
  
  
• 7. United States Citizen Identification Card (Form I-197).
  
  
• 8. Native American tribal document.
  
  
• 9. Identification Card for use of Resident Citizen of the United States (Form I-179).

RE-VERIFICATION OF EMPLOYMENT ELIGIBILITY

If an individual's employment eligibility expires, the employer must examine documents
reflecting current eligibility and update Form I-9 by noting the document number and expiration
date on the form.

A "tickler" system should be established for this purpose. Except where the presented employment
eligibility document expires, there is no requirement to re-verify an individual's employment eligibility
if the employee is continuing his or her employment.

CONTINUING EMPLOYMENT

The identity and employment eligibility of a "grand-fathered" employee need not be verified,
and the status of an employee whose status has been verified previously need not be re-verified,
if the employee is continuing his or her employment, and at all times has a reasonable expectation
of employment. "Continuing employment" includes but is not limited to situations where:

• a. The employee takes any temporary leave approved by the employer, including but not
  limited to paid or unpaid leave on account of study, illness or disability of a family member,
  illness or pregnancy, maternity or paternity leave, vacation, or union business;
  
  
• b. The employee is promoted, demoted, or gets a pay raise;
  
  
• c. The employee is laid off for lack of work;
  
  
• d. The employee is on strike or in a labor dispute;
  
  
• e. The employee is reinstated after "wrongful termination";
  
  
• f. The employee transfers from one distinct unit of the employer to another unit
  (in this case the employer may transfer the I-9 to the receiving unit); or
  
  
• g. The employee continues his or her employment with a "related, successor,
  or reorganized employer", including:
  

1. The same employer at another location;

2. An employer who continues to employ some or all of a previous
employer's work force in cases involving a corporate reorganization,
merger, or sale of stock or assets; or

3. An employer who continues to employ some or all of another employer's
work force where both employers belong to the same multi-employer association
and employees continue to work in the same bargaining unit under the same
collective bargaining agreement. In these cases, the "related, successor, or
reorganized employer" must obtain and maintain the previous records and Forms I-9.

REHIRE OF FORMER EMPLOYEES,
REFERRAL OF PREVIOUSLY REFERRED EMPLOYEES

Where an employer hires a former employee within three (3) years of the employee's initial
completion of Form I-9, the employer may inspect the previously completed Form I-9 in lieu
of completing a new form. If, upon inspection, the employer determines that the Form I-9 relates
to he individual and that the individual remains eligible for work, no new form need be completed.
If, upon inspection, the form I-9 reflects that the employment eligibility documents initially
presented have expired, the employer must examine documentation reflecting current eligibility
and update the form I-9. The same rules apply to recruiters and referrers for a fee. They may
inspect and, if necessary, update the Form I-9 on file if the individual is referred again within
three (3) years of the initial execution of the Form I-9.

INDEPENDENT CONTRACTORS

There is no requirement to verify the status of a bona fide independent contractor or their
employees. An employer using the services of an independent contractor (e.g., temporary
help service, construction subcontractor) is nor required to verify the status of the contractor's
employees. It violates the Act, however, if the employer knows the contractor's employees
are unauthorized aliens. Whether an individual or entity is an independent contractor or an
employee will be determined on a case-by-case basis applying the traditional "right of control"
test, consistent with current Internal Revenue Service guidelines. Be very careful about calling
employees "independent contractors".

Remember that a rose, is a rose, is a rose, but calling a daisy a rose will not make it smell
like a rose, nor will it make it a rose. Prudent employers will consult competent legal counsel
before attempting to categorize any employee as an independent contractor, whether for purposes
of the I-9 form, or for other tax purposes. There can be severe financial consequences for employers
who do not follow the law.

RETENTION OF I-9 FORMS &INSPECTION BY CIS

Employers must retain the Form I-9 for three (3) years or for one year after an individual's
employment terminates, whichever is longer. Recruiters and referrers for a fee must retain
Form I-9 for three (3) years after the date of referral. The forms must be made available at
the place where the request is made, or if they are kept at another location, at the nearest
CIS office to that location.

The penalty for violation of the record keeping or retention requirements is $100 to $1,000
per individual for whom the violation occurs. Remember, this applies to ALL employees,
suspected or clearly alien employees.

PROHIBITION AGAINST INDEMNITIES & BONDS

Requiring an individual to post a bond, to pay or agree to pay any amount or to provide any
financial guarantee or indemnity against potential liability for hiring, recruiting, or referring
the individual, is unlawful.

The penalty for violation of this provision is $1,000 per violation, plus return of any amounts received.
The prohibition does not apply to agreements between contracting parties containing performance clauses.
Employers should consider requiring independent contractors to represent that they are in compliance with
IRCA as evidence that they are not knowingly obtaining the labor of unauthorized aliens.

RECRUITERS AND REFERRERS FOR A FEE

Recruiters and referrers for a fee (i.e. employment agencies, etc.) must verify the status of,
and complete Form I-9 with respect to each individual referred to and hired by an employer
after May 31, 1987. No verification is required for persons not hired by an employer.

To "refer for a fee" means to send or direct a person, documentation or information to another
with the intent of obtaining employment in the United States for the person for remuneration,
whether on a retainer or contingency basis. To "recruit for a fee" means to solicit a person directly
or indirectly and refer that person to another with the intent of obtaining employment for that
person, whether on a retainer or contingency basis.

Union hiring halls are not covered by this requirement. Recruiters and referrers may designate
agents to complete the verification procedures on their behalf (including but not limited to
employers, notaries, or associations). If an employer is designated as the agent, the employer
need only provide the recruiter or referrer with a photocopy of the Form I-9. Even if an agent
is designated, ultimate liability for compliance with the statute remains with the recruiter or
referrer.

PROHIBITION AGAINST DISCRIMINATION

IRCA prohibits discrimination on the basis of national origin, and in the case of United States
citizens or intending citizens, on the basis of citizenship status. The anti-discrimination provisions
apply to employers with more than three employees. IRCA contains no exemptions such as the
private club exemption contained in Title VII of the Civil Rights Act of 1964. The Act provides
for penalties consisting of fines ranging to $2,000 per offense, injunctive relief, reinstatement
with back pay, and attorney's fees.

Although IRCA provides that an employer may prefer a citizen over an equally qualified non-citizen,
the Equal Employment Opportunity Commission (EEOC) has stated that such preferences any
violate Title VII. Therefore, it would not be prudent for an employer to rely on this preference
provision of IRCA. In order to avoid liability for discrimination, the verification requirements of
IRCA should be applied equally to all employees, and attempts to verify the status of or adverse
action against individuals should be strictly limited to the requirements imposed by IRCA.

Title VII and other civil rights acts remain fully in effect, and EEOC has warned that IRCA
may not be used as an excuse to avoid hiring or otherwise discriminating against individuals
who look or sound "foreign".

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EMPLOYER SANCTIONS

CIVIL MONEY PENALTIES &CRIMINAL PENALTIES

(The penalties described in this bulletin cover offenses occurring on or after September 29, 1999)

The Department of Homeland Security, U.S. Immigration & Customs Enforcement (ICE), is authorized to conduct investigations to determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and failing to properly complete, present or retain the Employment Eligibility Verification form (Form I-9) for newly hired individuals.

If ICE believes that violations have occurred, ICE may issue a Warning Notice, a Technical or Procedural Failures Letter notifying the employer of technical or procedural failures in need of correction, or a Notice of Intent to Fine (NIF).

In cases where an NIF is issued, employers may request a hearing within 30 days of service of the NIF to contest the NIF before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), Executive Office for Immigration Review, U.S. Department of Justice. Hearing requests must be in writing and filed with the ICE office designated in the NIF.

If a hearing is not requested within the 30-day period, ICE will issue a Final Order to cease and desist and to pay a civil money penalty. Once a Final Order is issued, the penalty is unappealable. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process which may end in settlement, dismissal, or a Final Order for civil money penalties. Hiring or Continuing to Employ Unauthorized Aliens. An employer found to have knowingly hired, recruited or referred for a fee, or continued to employ, an unauthorized alien for employment in the United States shall be subject to an order to cease and desist from the unlawful behavior and to pay a civil fine.

An employer can be fined $250 - $2,000 per unauthorized alien with respect to whom the First offense occurred before September 29, 1999, and not less than $275 and not exceeding $2,200, for each unauthorized alien with respect to whom the offense occurred on or after September 29, 1999. An employer can be fined from $2,000 to $5,000 per unauthorized alien for a Second offense that occurred before September 29,1999, and between $2,200 and $5,500 if occurred on or after September 29, 1999.

An employer can be fined from $3,000 to $10,000 per unauthorized alien for each Third or Subsequent offense that occurred before September 29, 1999, and between $3,300 - $11,000 if occurred on or after September 29, 1999. These penalties are not limited to employees for whom employers complete and retain I-9 files, but also cover employers' use of contract personnel known to them to be unauthorized to work in the United States.

If an employer can demonstrate compliance with Form I-9 requirements, a good faith defense with respect to a charge of knowingly hiring an unauthorized alien will have been established unless the government can prove otherwise.

In determining the level of the money penalties that will be imposed, a finding of more than one violation in the course of a single proceeding or determination will be counted as a single offense.

However, a single offense will include penalties for each unauthorized alien who is determined to have been knowingly hired, recruited, or referred for a fee. Failure to Comply with Form I-9 Requirements Employers who fail to properly complete, retain, and/or present Forms I-9 for inspection as required by law may be subject to a civil penalty for violations occurring on or after September 29, 1999 from $110 to $1,100 per employee whose Form I-9 is not properly completed, retained, and/or presented. For violations occurring before September 29, 1999, civil penalties range from $100 to $1,000.

In determining the amount of the civil penalty, the following factors are considered: size of the business
of the employer being charged; the good faith of the employer; the seriousness of the violation; whether or not the individual was an unauthorized alien; and the history of previous violations of the employer.

Requiring Indemnification Employers found to have required a bond or indemnity from an employee against liability under the employer sanctions laws may be fined $1,000 for each violation before September 29, 1999, and $1,100 per violation on or after September 29, 1999, and ordered to make restitution to the person required to pay the indemnity. If that person cannot be located, payment is made to the U.S. Treasury.

CRIMINAL PENALTIES

Engaging in a Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens
Employers convicted of having engaged in a pattern or practice of knowingly hiring unauthorized aliens or continuing to employ aliens knowing that they are or have become unauthorized to work in the United States, after November 6, 1986, (e.g. expiration of work authorization), may be fined up to $3,000 per unauthorized employee and/or face up to 6 months of imprisonment.

Engaging in Fraud or False Statements, or Otherwise Misusing Visas, Immigration Permits, and Identity Documents Persons who knowingly use fraudulent identification documents, identity documents that were issued to persons other than themselves, or false attestations for the purpose of satisfying the employment eligibility verification requirements, may be fined and/or imprisoned for up to 5 years.

CIVIL DOCUMENT FRAUD

It is unlawful for any person or entity knowingly to engage in any of the following activities:

• Forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a
  requirement of the Immigration and Nationality Act (INA) or to obtain a benefit under the INA;

• Use, attempt to use, posses, obtain, accept, or receive or to provide any forged, counterfeit,
  altered or falsely made document for the purpose of satisfying a requirement of the INA or to
  obtain a benefit under the INA;

• Use or attempt to use or to provide or attempt to provide any document lawfully issued to a
  person other than the possessor, including a deceased individual for the purpose of satisfying
  a requirement of the INA or to obtain a benefit under the INA;

• Accept or receive or to provide any document lawfully issued to or with respect to a person
  other than the possessor for the purpose of complying with the employment eligibility verification requirements or obtaining a benefit under the INA;

• Prepare, file, or assist another in preparing or filing, any application for benefits under the INA, or any document required under the INA, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted; or

• Present before boarding a common carrier for the purpose of coming to the United States a
  document which relates to the alien's eligibility to enter the United States, and to fail to present
  such document to an immigration officer upon arrival at a United States port of entry.

If an investigation reveals that an individual has committed or participated in any of the acts listed above, the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement may issue a Notice of Intent to Fine (NIF). Within 60 days of the NIF, the person or entity that receives the NIF may make a written request for a hearing submitted to the appropriate ICE office or face an unappealable Final Order to pay a civil penalty, per fraudulent document or proscribed activity, in the amount of: $250 - $2,000 or, if on or after September 29, 1999, $275 - $2,200, for the first offense; and $2,000 - $5,000, or, if on or after September 29, 1999, $2,200 - $5,500, for each subsequent offense. For an individual who is not a U.S. citizen, waiver of a 274C hearing will result in the issuance of a final order and removal from the United States.

UNLAWFUL DISCRIMINATION

If an Office of Special Counsel for Unfair Employment-Related Discrimination (OSC) or Equal Employment Opportunity Commission (EEOC) investigation reveals employment discrimination covered by the Immigration and Nationality Act, the employer will be ordered to cease the prohibited practice and may be ordered to take one or more of the following steps:

• Hire or reinstate, with or without back pay, individuals directly injured
  by the discrimination;

• Lift any restrictions on an employee's assignments, work shifts, or movements;

• Post notices to employees about their rights and about employers' obligations;

• Educate all personnel involved in hiring and in complying with the employer sanctions
  and anti-discrimination laws;

Remove a false performance review or false warning from an employee's personnel file.

Employers may also be ordered to pay civil monetary penalties of $250 to $2,000 per individual discriminated against for the first offense, $2,000 - $5,000 per individual discriminated against
for the second offense and $3,000 tp $10,000 per individual discriminated against for subsequent offenses.

DOCUMENT ABUSE

Where employers are found to have requested more or different documents than an employee
has chosen to present from List A or Lists B and C, they may be fined $100 to $1,000 for each
individual determined to have suffered such document abuse.

The Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related
Unfair Employment Practices can be reached on an employer hotline at (800) 255-8155 and on an
employee hotline at (800) 255-7688 or via web at http://www.usdoj.gov/crt/osc.

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I-9 Basics

I-9 forms can be downloaded from the CIS web site at http://uscis.gov/graphics/formsfee/index.htm

Complaints about employing illegal workers may prompt an investigation from the Department of Labor or the U.S. Immigration & Customes Enforcement (ICE). An employer can be fined and otherwise sanctioned for knowingly hiring an undocumented worker or unknowingly hiring an undocumented worker if a reasonable person would believe the employee was illegally employed.

Every employer must complete a Form I-9, for every employee, even if there is just one employee, and even if the employer knows for certain that the employee is a U.S. citizen. Companies employing true independent contractors are not responsible for completing the I-9 forms for those workers. Employers should consult a labor lawyer for a determination as to whether an employee is truly an independent contractor, as the law in this are is complex. If an employee provides information and documents to the employer that, on their face, appear valid and qualifying, the employer need not investigate further.

An employer should probe the applicant further only if the documents are obvious forgeries, the information on the documents does not seem to match the employee, or has other solid information, not rumors, that makes them believe they should ask more questions of the employee.

It is a good idea to periodically perform an audit of all of the company's I-9s to be sure they continue to comply with the law. If ICE audits the employer, there can be stiff fines for violation. I-9 forms are subject to inspection by the CIS on three days’ notice, without even a warrant or subpoena.

Here are some "do’s" and "don’ts"
when going through the I-9 verification process.

The do’s:

• Prior to hire, or during an employee’s first day, give him or her a list of
  documents that can be used to verify status.
  
  
• Inquire about name changes and require documentation to verify the change.
  
  
• Make sure the documents the employee provides are on the lists of acceptable documents.
  
  
• Review documents for authenticity. Look for any obvious signs of tampering or forgery.
  
  
• Reject a document only if it appears to be an obvious fake. If it looks valid on its face and
  is listed as a qualified document on the I-9, an employer can accept it without further investigation.
  
  
• Keep I-9's thought the duration of employment, and for one year after an employee's employment ends.
  

Of course there are some big don’ts when it comes to the I-9 verification process. Employers must avoid discriminating against the employee because of citizenship status or national origin through “document abuse,” i.e., asking the employee for more documents than necessary or different documents to prove employment eligibility, especially if they look, or their name sounds foreign. Treat all employees equally.

The don'ts:

• Don’t tell the employee which documents to present.
  
  
• Don’t tell the employee that the employer prefers a certain document or documents.
  
  
• Don’t reject a document unless it is an obvious forgery or shows signs of tampering.
  
  
• Don’t accept photocopies of any qualifying documents, or laminated social security cards.
  
  
• Don’t reject a document simply because it differs from what is in the CIS Handbook.

Employers are not required to be an expert on fraudulent documents, but will be expected to use common sense.
U.S. Immigration & Customes Enforcement (ICE) audits I-9 compliance and the U.S. Department of Labor (DOL) investigates employment compliance through the Wage and Hour Division and the Office of Federal Contract Compliance Program and as a part of their investigation. DOL can also inspect I-9 verification files.

The U.S. Department of Labor does not have authority to issue a Notice of Intent to Fine (NIF), but it can report violations they find to ICE for further action. There are more than 700 ICE agents auditing employers nationwide,
along with more than 1,500 DOL inspectors.

Getting Help

To avoid problems with employing foreign workers, employers should consult a qualified immigration attorney,
who can train human resource personnel about proper I-9 compliance procedures.

If an employer is audited by ICE for I-9 compliance:

Other don'ts . . .

• Don’t consent to an immediate inspection if an ICE agent show up without notice;
  employers have up to three days to respond. Call your attorney immediately.*
  
  
• Don’t let an ICE agent take original records; provide them with photocopies.
  
  
• Don’t allow ICE officers to talk with employees before you call your attorney.

* If U.S. Department of Labor or ICE agents come for an audit without notice,
decline their inspection.

If audited by DOS, they will notify the ICE, and the issues can be dealt with after retaining immigration counsel.

If CIS discovers technical errors on I-9s, the employer has 10 days to correct them.

Only lawyers who routinely deal with business immigration will be knowledgeable about employer compliance issues. Firms dealing with both immigration and employment and labor law can best handle compliance issues and any litigation arising from either an ICE or DOL audit.

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PRACTICAL ADVICE TO EMPLOYERS

Although they may not know it, U.S. employers serve as a sort of an agent for the U.S. Immigration & Customs Enforcement (ICE), who is responsible for the enforcement of U.S. immigration laws.

In 1986, as a trade-off for the Amnesty Program, which legalized millions of illegals, Congress passed legislation making it unlawful for an employer to hire or continue to employ undocumented aliens.

As a part of the enforcement program mandated by that law, CIS created the Form I-9 and its verification process, which requires employers to confirm the lawful employment eligibility of all employees. Properly and timely completing an I-9 form for every employee also provides employers with a “good faith” defense if they hire someone who later turns out to be working illegally in the United States.

Although not required by law, employers should in the case of every employee, regardless of place of birth or
citizenship, make photocopies of I-9 qualifying documents, and place them in each employee's personnel file.

I-9 Employer Checklist

Tips For Employer Compliance

By law, Form I-9 (Employment Eligibility Verification) must be maintained by all employers. Every new hire, regardless of nationality, ethnicity or origin, and whether a U.S. citizen or a foreign national, must complete Section 1 on the first day of employment, attesting to the individual's identity and employment eligibility.

Within the first three days of hire, employers must complete section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document(s) number(s) on the form, and certifying by signing under penalty of perjury that the documents examined appear to be genuine and relate to the employee. Employers must not engage in prohibited acts of discrimination against new hires and applicants for employment, such as basing employment decisions on citizenship or national origin status, or insisting that employees provide only specific types of identity documents.

Prudent employers should follow the steps recommended below to insure their compliance obligations under the immigration laws are fulfilled. This is especially important in the post-Enron era when Sarbanes-Oxley Act compliance and damage to reputation are of heightened concern. The following checklist can serve as a starting point for employer I-9 compliance:

Current I-9s:

1. As long as no formal enforcement proceedings are pending or likely, employers should remove from their files and discard original I-9s no longer subject to the I-9 "retention rule" (I-9s may be destroyed after three years from date of hire or one year from date of termination, whichever is later);

2. Employers should perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices;

3. As a measure of good faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction.

4. Establish a tickler system for the timely "reverification" of employment eligibility for foreign-national employees who have time-limited work permission.

5. Employers should take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the agency's own data (the so-called SSA "no-match letter"). An employer acts appropriately in this situation by checking the employer's records, providing the employee an opportunity to seek an official correction, or if unable to verify and reconcile the discrepancy, considering (on advice of counsel) whether termination of employment is required.

6. If numerous no-match letters are received, employers should consider reverifying the entire workforce but take precautions to avoid unlawful immigration-related employment discrimination.

7. Employers should decide whether to:

• Copy or refrain from copying original documents of identity and employment eligibility.

Copying creates a paper trail making it easier for the employer and the government to review prior compliance actions, and for the employer to make corrections to I-9s, if required. However, for large companies, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.

• Maintain I-9s in paper, microfiche or electronic format.

Large employers should consider whether to maintain required records in paper format or use alternative technology. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology has its advantages in reducing paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government's investigative burden.

• Participate in the new U.S. Citizenship & Immigration Enforcement ("ICE") Programs,
  the Electronic "Basic Pilot" Verification and/or "IMAGE".

The Basic Pilot allows an employer to check the employment eligibility of foreign nationals (new hires only) through the government's immigration database. The signing of a Memorandum of Understanding is required.
IMAGE is the ICE Mutual Agreement between Government and Employers,
a plan for voluntary self-policing and the submission of annual immigration
audits first by the government and then by qualified third-party entities.
See: http://www.ice.gov/partners/opaimage

Practices for Future Hires:

1. Set up a system for handling future I-9s.Complete Section 1 of the I-9 on the
first day of work for all new hires.

2. Complete the rest of the I-9 within three days of the first day of work.

3. Consider pre-completing Employer's Business Name and Address in Section 2
and pre-fill Employer Authorized Representative's Name and Title if it is always the
same person completing the Employer Certification.

4. Do not accept copies of work or identity documents.

5. Make sure all new hires complete I-9s in person before a company official
(in order to confirm identity) or an authorized agent (with respect to whom the
employer must take full responsibility for any I-9 mistakes or omissions.)

Company Practices:

1. Engage in regular training for employees handling I-9 completion.

2. Establish an I-9 routine and follow it consistently for every employee.

3. Create a system for tracking dates of hire and termination of employment
in order to purge I-9s from current storage to minimize liability (assuming no
actual or threatened government investigation exists or is likely).

4. Consider establishing policies (in consultation with employment law counsel)
for future compliance and ongoing voluntary audits.

For more information about I-9 forms and compliance, see: http://www.inteconlaw.com/I-9_counseling.htm

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