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I-9 E-Verify Immigration Compliance

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  1. When does an Employer have Knowledge of Unlawful Immigration Status

    By: Bruce Buchanan, Sebelist Buchanan Law


    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379), Greg Siskind and I discuss Knowledge of Unlawful Immigration Status. Here are excerpts from Chapter 6 from the book.

    6.1 What if an employer knows an employee is not authorized to be employed even though the Form I-9 was properly completed?

    An employer that knows the employee is not authorized to work, even though everything on the Form I-9 appears valid—is violating the Immigration Reform and Control Act (IRCA) because the employer is considered to have actual knowledge that an employee is not employment eligible. An employer that simply suspects an employee is ineligible to work should be extremely careful before terminating an employee, or even asking for additional documentation, unless the employer has a solid foundation for the belief. Taking an action after merely hearing from an-other employee that a particular employee is unauthorized to be in the United States is a recipe for a discrimination lawsuit because IRCA does not require employers to make inquiries under these circumstances. On the other hand, if an employee actually provides information to the employer regarding his or her immigration status, the employer would be considered to have knowledge. If the employer continues to employ this individual, it is a serious violation.

    6.2 When would an employer be considered to have “constructive knowledge”?

    The U.S. Department of Homeland Security (DHS) regulations hold employers liable not only when they have actual knowledge that an employee is unauthorized to work, but also when knowledge may be inferred through notice of certain facts that would “lead a person, through the exercise of reasonable care, to know about a certain condition.” Code of Federal Regulations, Title 8, section 274a.1(e). This is called “constructive knowledge,” and DHS lists several examples in its rules:

     The employer fails to complete or improperly completes the Form I-9.

     The employer has information that would indicate the alien is not authorized to work, such as a labor certification (this would generally apply only when an employee already was claiming to be a U.S. citizen or permanent resident on the Form I-9).

     The employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an un-authorized employee into its workforce.

    This list is not exhaustive, and employers also need to be cognizant of the anti-discrimination rules. In addition, failing to re-verify a Form I-9 requiring reverification usually will be considered constructive knowledge.

    A clearer situation is found when an employer receives a Notice of Suspect Documents (NSD) from ICE that an employee has submitted fraudulent documentation. The courts generally have held that such a notification would provide an employer with constructive knowledge of a problem and that the employer would need to re-verify.

    6.3 What if an employee later presents a different Social Security number from when the Form I-9 was completed?

    Because a person is assigned only one Social Security number (SSN) in his or her lifetime, an employee who comes to an employer with a number different from the one at the time of hire should be viewed with suspicion. The odds are that the employee used a false number to begin work and has somehow been able to obtain a valid SSN later (such as through a green-card application filed independently of the employer).

    The same principle normally applies with an “A” or “Alien number.” An employee should have only one “Alien number.” The number does not change upon renewal of Permanent Resident card or moving from Employment Authorization card to Permanent Resident card. The authors know of only two occasions where an employee legitimately had two “Alien numbers” and that was when the employee failed to disclose the number to ICE or USCIS before starting a new process. Having two different “Alien numbers” is a strong indication of unlawful status or previous unlawful status.

    Employers will, of course, want to speak to employment counsel involving a violation of an employer’s policies regarding making false statements during the hiring process. With respect to IRCA, the employer should inquire regarding the circumstances surrounding obtaining the new number. However, the employer is not required to terminate the employee even if the employee admits making a false statement; and the employer would be able to continue employing the employee if the employer had no knowledge of the employee’s lack of work authorization. In this case, a new Form I-9 should be completed with the old Form I-9 attached with an explanation. The employer should correct the number with the IRS, so taxes are properly withheld.

    However, if the employer has an honesty policy that states one can be terminated for lying on a company document and that policy has been followed, the employee must be terminated.

    6.7 What if an employer receives a DHS notice that there is a problem with a document presented in connection with a Form I-9?

    DHS’s requires an employer to take specific steps in a prescribed timeframe when it receives notification from DHS that a document presented by an alien for employment verification purposes is invalid, or fraudulent, or cannot be authenticated. The main uncertainty surrounds how quickly an employer would need to respond and to what extent.

    An employer that receives this type of notice (known as a Notice of Suspect Documents, or NSD) would not violate the anti-discrimination rules of IRCA if it requests that an employee provide additional documentation. The courts have held that ICE need not pro-vide irrefutable proof that the employee is ineligible to work. It is enough that ICE provides information that arouses suspicion. As for timing, an employer must act within 10 days of ICE’s notice, although it is debatable as to what action the employee must take within 10 days. It may be that the employer must notify the suspect employee, or it may be that the employer must discharge the employee if he or she does not provide any new work authorization or ICE has rejected the new documents. Certainly, it must be reasonable under the circumstances.

    Another type of notice from ICE is called a Notice of Discrepancies. It advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
    When an employer follows up with an employee, the question also arises regarding what action must be taken. Clearly, the employer must provide the new documentation to ICE, which will determine the new documentation’s validity. What if the employee provides new, valid documentation that does not include the suspect document? In this case, the employer would have a defense against a later charge of knowingly employing an unauthorized employee.

    6.8 What if an employee tells the employer that another employee is unauthorized?

    The employer should not consider a mere tip from another employee to constitute knowledge that an employee is out of status. An employer acting on such a tip alone could be vulnerable to being found to have violated anti-discrimination laws.

    According to a ICE/ Office of Special Counsel (OSC) December 2015 guidance, “tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. An employer is cautioned against responding to tips that have no indicia of reliability, such as unsubstantiated, retaliatory, or anonymous tips. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employee based on unreliable tips may be unlawful, particularly if the tip was made based on retaliation, the employee’s national origin, or perceived citizenship status.”

    On the other hand, an April 12, 1999, opinion letter from legacy Immigration and Naturalization Service (INS) general counsel noted that if an employer receives a tip from another employee indicating that an employee is not authorized to be employed, and the employer later receives a Social Security no-match letter, the employer would likely have constructive knowledge based on a “totality of the circumstances.”

    6.9 Is an employer liable if it uses a contractor and knows the contractor’s employees are not authorized to work?

    Yes. DHS regulations state that any person who uses a contract, subcontract, or exchange to obtain the labor or services of a foreign employee in the United States, knowing that the employee is unauthorized to work, should be considered to have hired the employee for purposes of determining if a person has violated IRCA.

    6.10 May an employer be deemed to have constructive knowledge when it failed to complete a Form I-9 for an employee or when the form is completed improperly?

    Yes. In various cases, employers have been held to have had constructive knowledge that an employee was unauthorized to work even if the employer had no direct knowledge of the employee’s employment status. Courts have held that employers are not excused simply because there is a Form I-9, if the form itself was not properly completed. A court would look to the circumstances surrounding the particular form and use a standard of what is reasonable to determine if an employer should have known that an employee was likely not authorized.

    6.11 May an employer be deemed to have constructive knowledge when it fails to re-verify a Form I-9?

    Yes. Courts have found that an employer that fails to re-verify a Form I-9 when such re-verification is required will usually have constructive knowledge that an employee is unauthorized to work. The more complicated question is what to do when the employee presents documentation that does not relate to the expired document presented at the time of hire. ICE and the courts have held that an employer has an obligation to make an inquiry regarding the continuing employment authorization. This would seem to violate the anti-discrimination rules in IRCA that bar employers from specifying which documents an employee may submit. However, Congress addressed this issue in Section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which punishes employers for making inquiries regarding continuing work authorization only when such inquiries are made for the purpose or with the intent of discriminating against an individual.
  2. Requirements of Form I-9 recordkeeping

    By: Bruce Buchanan, Sebelist Buchanan Law




    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379), Greg Siskind and I discuss Form I-9 recordkeeping. Here is Chapter 4 from the book.

    4.1 What are the Form I-9 recordkeeping requirements?

    Employers must keep Forms I-9 for all current employees, though the forms of certain terminated employees may be destroyed. In the case of an audit from a government agency, the forms must be produced for inspection. The forms may be retained in either paper or electronic format as well as in microfilm or microfiche format.

    4.2 When can a Form I-9 be destroyed?

    For terminated employees (the date employment ceased or ceased in the United States for employees transferred abroad), the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

    Employers should note two dates when an employee is terminated. The first is the date three years from the date of the employee’s date of hire. The second is the date one year from the termination date. The later date is the date until which the Form I-9 must be retained.

    There is a different rule for recruiters or referrers for a fee. Those entities are required to maintain Forms I-9 for only a three-year period from the date of hire, regardless of whether the employee has been terminated.

    In addition to establishing a reminder system to re-verify Forms I-9, employers should establish a tickler system to destroy forms no longer required to be retained.

    4.3 Should recordkeeping be centralized at a company?

    Keeping records in one location is generally advisable because it is easier to conduct internal audits to ensure the employer is complying with the rules of the Immigration Reform and Control Act (IRCA), and also to more easily prepare for a government inspection, given that having the forms at one location will allow more time for review. However, there may be situations in which keeping the records at each location is more convenient or practical.

    The forms themselves can be kept onsite or at an offsite storage facility as long as the employer is able to produce the documentation within three days of an audit request from a federal agency.

    4.4 Does an employer need to keep copies of the documents presented by the employee?

    No, retaining copies of the supporting documents is voluntary except in certain circumstances where using E-Verify. Under E-Verify, if an employee presents a Permanent Resident Card, Employment Authorization Document or U.S. passport or passport card as the verification document, the employer must make a copy of that document and keep it on file with Form I-9.

    Employers can retain copies of documents and must keep the copies with the specific Form I-9. Although retaining copies of documents may leave an unnecessary paper trail for government inspectors, maintaining documentation could provide a good faith defense for an employer that needs to show it had reason to believe an employee was authorized even if the paperwork was not properly completed. Retaining copies of documents also makes it easier for an employer to conduct internal audits to ensure compliance; this allows the attorney or other auditor to see what documents were actually provided to the Human Resources representative responsible for completion of the Form I-9. Furthermore, if copies are retained and some data are missing in Lists A, B, or C, such as the issuing authority or expiration date, it is only a technical error, not a substantive one.

    Whatever a company decides, however, it is important that the policy be consistently applied and to remember that simply having copies of the documents does not relieve the employer of responsibility for fully completing Section 2 of the Form I-9.

    Consistency is paramount. Employers should keep all the documents or keep none of them because keeping copies for only certain employees could open the employer up to charges of discrimination.
    In Tennessee, for those employers with less than 50 employees, an employer must copy and maintain a certain designated document (such as an unexpired U.S. passport, permanent resident card, Employment Authorization Document, birth certificate, certificate of naturalization, or state-issued driver’s license or identification) unless the employer uses E-Verify. Of course, E-Verify has its own rules on what documents must be retained. If the employer in Tennessee has 50 or more employees, it must utilize E-Verify, as of January 1, 2017.

    In Louisiana, employers must retain an employee’s picture identification and a copy of a U.S. birth certificate, certificate of naturalization, certificate of U.S. citizenship, or a Form I-94 with an employment-authorized stamp for all employees, unless the employer uses E-Verify.

    4.5 Can a Form I-9 completed on paper be stored in another format?

    Yes. In addition to paper, Forms I-9 may be retained in an electronic, microfilm, or microfiche format. The U.S. Department of Homeland Security (DHS) suggests the following with respect to microfilm or microfiche:


    • Use film stock that will last the entire retention period (which could exceed 20 years for some businesses).
    • Use equipment that allows for a high degree of readability and that can be copied onto paper.
    • For microfilms, place the index at the beginning or end of the series; and for microfiche, place the index on the last microfiche.


    4.6 Should the Form I-9 records be kept with the personnel records?

    Keeping Form I-9 records with personnel records is generally a bad idea. First, it could compromise the privacy of employees by allowing government inspectors to review items that are completely unrelated to the Form I-9. Employers that want to prevent this would have to manually go through the personnel records and pull the Form I-9 paperwork, some-thing that could cost valuable time as the employer prepares for the government inspection. Keeping the Forms I-9 separate will make it easier to conduct internal audits to ensure compliance with the Immigration Reform and Control Act (IRCA) and to re-verify forms as needed.
  3. When does an Employer Need to Re-Verify?

    By: Bruce Buchanan, Sebelist Buchanan Law



    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379),
    Greg Siskind and I discuss reverification. Here is an excerpt from the book.

    3.1 What are the Form I-9 re-verification requirements?

    If an employee is not a U.S. citizen, lawful permanent resident, or noncitizen national, he or she is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their documents on the Form I-9 and then must pull the employee’s Form I-9 before the expiration date and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

    3.2 What if the re-verification section of the form has been completed from a prior re-verification?

    In this case, an employer can complete and sign Section 3 of a new Form I-9. The employer should put the employee’s name in Section 1 and retain the new form with the original.

    3.3 Can an employee present a Social Security card to show employment authorization at re-verification when he or she had presented an expiring Employment Authorization Document or Form I-94 at the time of hire?

    Yes, an employee may present a Social Security card to show employment authorization at re-verification as long as the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS [U.S. Department of Homeland Security] authorization” or “valid for work only with INS [Immigration and Naturalization Service] authorization.” If the Social Security card has this language, it is not a valid List C document. This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid. Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized.

    3.4 What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of re-verification?

    If a new Form I-9 has been released between the date of hire and the date of re-verification, the employer should complete Section 3 of the new version of the Form I-9 and accept only documentation of employment eligibility from the Lists of Acceptable Documents in the Form I-9 instructions. However, the U.S. Department of Homeland Security (DHS) will accept use of Section 3 on the existing completed Form I-9 if it has not been previously completed for prior re-verification.

    3.5 Do past employees resuming work with a company need to complete a new Form I-9?

    Returning employees often do not need to complete a new Form I-9, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the Form I-9, if the formerly listed work authorization has expired. If a new version of the Form I-9 has come out since the last time the Form I-9 was completed, the employer may complete a new form or use Section 3 of the existing completed Form I-9. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new Form I-9.
    For an employee to be considered a “rehire,” the employer must be re-hiring the employee within three years of the initial hiring date of the employee, and the employee’s previous grant of work authorization must not have expired. Employers must:
    1. record the rehiring date;
    2. if the formerly listed work authorization has expired, write the document title, number, and expiration date of any eligible document presented by the employee;
    3. sign and date Section 3; and
    4. if the re-verification is recorded on a new Form I-9, write the employee’s name in Section 1.

    Of course, it may be easier just to complete a new Form I-9, and an employer can certainly opt for this. Note that the rules on returning employees also apply to cases of recruiting or referring an individual.

    3.6 What if a rehired employee is rehired after a new version of the Form I-9 is released?

    If the Form I-9 has been modified since the form was completed on the date of hire, the employer may complete Section 3 of the existing completed Form I-9 or Section 3 of the new form and attach the old form. The employee should provide documentation of continued employment authorization from the current Lists of Acceptable Documents provided in the Form I-9 instructions.

    3.7 What if an employee changes his or her name?

    An employee’s name change should be recorded by the employer in Section 3, although it is not mandatory to complete Section 3 for a name change. If an employee requests such, it is a best practice for the employer to request a document reflecting the name change, such as a marriage certificate or divorce decree.
    Reverification is often misunderstood by HR. Thus, it is important to know how to re-verify. It’s also important to know when not to re-verify. This is covered elsewhere in the book. The most important point on when not to re-verify is this – do not reverify after a permanent resident card, passport or driver’s license expires.
  4. ICE Announces its Three-prong Approach to Worksite Enforcement

    By Bruce Buchanan, Sebelist Buchanan Law

    On the heels of Immigration and Customs Enforcement’s “silent raids” on almost 100 7-Eleven convenience stores and the resolution of a worksite enforcement case against Asplundh Tree Experts Co., which paid a record $95 million in fines and forfeitures, Immigration and Customs Enforcement (ICE) announced a three-prong approach to conduct worksite enforcement. In doing so, ICE stated this ensures employees are legally authorized to work in the United States for employers, from small start-up operations to the largest corporations.

    This strategy involves a three-prong approach to worksite enforcement: immigration compliance, through Form I-9 inspections, civil fines and referrals for debarment; enforcement, through the arrest of employers, knowingly employing undocumented workers, and the arrest of unauthorized workers for violation of laws associated with working without authorization; and outreach, through the IMAGE program, to instill a culture of compliance and accountability.

    “Homeland Security Investigations (HSI) prioritizes violators who abuse and exploit their workers, aid in the smuggling or trafficking of their alien workforce into the United States, create false identity documents or facilitate document fraud, or create an entire business model using an unauthorized workforce,” said HSI Acting Executive Associate Director Derek Benner. “Further priority is given to looking closely at those companies or industries that are deemed national security or critical infrastructure interests.” ICE also stated an effective worksite enforcement strategy must address both employers who knowingly hire illegal workers, as well as the workers themselves.

    ICE’s statement highlighted the recent resolution of a case against Asplundh Tree Experts Co., one of the largest privately-held companies in the United States. This case revealed a scheme to unlawfully employ undocumented workers, in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. The company pleaded guilty and was ordered to pay a monetary forfeiture judgment in the amount of $80 million – the largest judgment ever handed down in a worksite enforcement investigation. They are also required to abide by an administrative compliance agreement. Pursuant to a separate civil settlement agreement, Asplundh will pay an additional $15 million to satisfy civil claims arising out of their failure to comply with immigration law, bringing the total cost of this illegal scheme to $95 million.

    To learn more about employer immigration compliance and steps you can take to prevent I-9 violations and hiring undocumented workers, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, which is available at http://www.amazon.com/dp/0997083379.
  5. 9th Court of Appeals Agrees with OCAHO Decision

    By Bruce Buchanan, Sebelist Buchanan Law

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    In a rare Court of Appeals decision involving Form I-9 penalties, the Ninth Circuit Court of Appeals (covers California, Oregon, Washington, Nevada, Alaska, Idaho, Montana, and Hawaii) substantially agreed with a decision by the Office of Chief Administration Hearing Officer (OCAHO). See DLS Precision Fab LLC v. ICE (9th Cir. August 2017).

    In the underlying decision, OCAHO found DLS to have committed 504 violations related to their I-9 forms and assessed a penalty of $305,050. Of the 504 violations, 489 concerned substantive or paperwork violations while 15 concerned employees who DLS knowingly employed without work authorization. DLS was able to reduce the penalties to $305,050 from $495,250, which Immigration and Customs Enforcement (ICE) sought.

    On appeal to the 9th Circuit, DLS prevailed on one issue, thereby reducing the violations from 504 to 503. In the appeal, DLS argued its paperwork or substantive violations should be viewed under the “good faith defense” because it “made a good faith effort to comply with the Immigration and Nationality Act (INA) by hiring a HR director, who exhibited bad faith by neglecting his duty to keep DLS compliant.” The Ninth Circuit was not persuaded by DLS’s argument because the HR director was acting as DLS’s agent; thus, “his failure to perform his responsibility may properly be imputed to DLS.” Moreover, DLS’s argument essentially requests the Ninth Circuit to rewrite the statute, something that is not with the court’s authority.

    The Court also affirmed OCAHO’s rejection of DLS’s statute of limitations defense. Concerning the numerous paperwork violations, the Court found such a violation occurs “until it is corrected, or until the employer no longer is required to retain the I-9 form.” There is a five-year statute of limitations, which applies the above test. In applying this test, the Ninth Circuit found one violation was beyond the five-year statute of limitations.

    Finally, DLS asserted OCAHO failed to take into account its inability to pay defense. The Court agreed with DLS but pointed out OCAHO was not required to consider an inability to pay; thus, there was no error.

    This court’s decision reinforces my mantra in previous articles – Form I-9 errors can have costly consequences; thus, all employers should conduct internal I-9 audits under the supervision of counsel who is well-versed in immigration compliance. For more information on how companies can protect themselves, you may want to read by new book, The I-9 and E-Verify Handbook, available from Amazon at: https://www.amazon.com/I-9-E-Verify-...dp/0997083379/.
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