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I-9 E-Verify Immigration Compliance

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  1. How does ICE Calculate Fines in an I-9 Inspection

    By: Bruce Buchanan, Sebelist Buchanan Law


    As Immigration and Customs Enforcement (ICE) conducts more and more I-9 inspections (the ICE director stated they would be increasing by 400 to 500%), employers need to know how ICE calculates any fines assessed against employers. AILA’s I-9 Verification Committee, through Rick Gump and Eileen Momblanco, recently drafted a fine Practice Pointer, which I encourage AILA members to read. For non-AILA members, this article will discuss the same concepts.

    It begins for an employer when ICE serves a Notice of Inspection (NOI)/subpoena to review the employer’s I-9 forms as well as many other HR-related records. The NOI gives the employer three business days to provide the subpoenaed documents. The ability to receive an extension of time to provide the I-9 forms and other documents seems to vary with what ICE office you are dealing. I have been successful in receiving extensions in almost all NOIs, but I never ask for more than one week and usually only five days. After the ICE auditor reviews the I-9 forms, the employer will receive a series of notices – Notice of Suspect Documents and Notice of Technical and Procedural Failures are the most common notices.

    If substantive paperwork, hiring, or continuing to employ (H/CTE) violations are found, ICE normally issues a Notice of Intent to Fine (NIF), although if the errors are less than 10%, ICE usually only issues a Warning Notice without a penalty. The fine/penalty amount in the NIF is determined by ICE attorneys and special agents in charge. Fines can be challenged by requesting review by an Administrative Law Judge (ALJ) of the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF. If litigated, the ALJ can adjust the fine amount.

    In November 2008, ICE issued a Memorandum, “Revised Administrative Fine Policy Procedures”, which contained a set of matrixes and required ICE to follow specific procedures for calculating paperwork and H/CTE fines. The Policy Procedures state the following to determine the level of fine within each matrix:


    • Use the number of violations of each type (paperwork or H/CTE) as the numerator and the number of total employees as the denominator; and
    • The percentage calculated above would be used to determine the percentage box in the fine matrix to start, and then fines could be adjusted up or down five percent for each of the five factors - business size, good faith, seriousness, employment of unauthorized aliens, and prior history with ICE/INS.


    However, ALJs can consider any factors it deems necessary to calculate an appropriate fine based on the case at hand. Cases with both paperwork and H/CTE violations sometimes produce higher fines for a greater number of paperwork violations compared to fines for a fewer number of H/CTE violations.

    To increase the level of penalties, ICE has begun to create a higher level of fine on each matrix by adding the number of paperwork violations to the number of H/CTE violations as the numerator, which in some cases dramatically increases the level of the fine in each matrix. Here are two examples:


    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10 + 20 = 30 to calculate 30% violations for each matrix. This would lead to a fine of $60,270 using the 2017 matrixes.
    • If you have 100 employees with 10 substantive paperwork violations and 20 H/CTE violations, you add 10/100 = 10% for paperwork and 20/100 = 20% for H/CTE violations for each matrix. This would lead to a fine of $40,560 without any aggravating or mitigating factors applied.


    In other words, instead of taking the number of paperwork violations and dividing them by the
    number of employees, and then calculating the H/CTE violations the same way, ICE adds the
    number of paperwork violations to the number of H/CTE violations when calculating the
    violation percentage from each matrix. This is resulting in a higher fine based on the matrix
    percentage of violations for each of the paperwork and H/CTE violations.

    ICE has defended this calculation method by pointing to language in the 2008 fine policy procedures, “The recommended base fine amount is determined by dividing the number of ‘knowing hire,’ ‘continuing to employ,’ and substantive verification violations by the total number of Forms I-9 presented for inspection to determine a violation percentage.”

    However, as the Practice Pointer states:
    On the next two pages, ICE instructs agents to “divide the number of ‘knowing hire’ and ‘continuing to employ’ violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage” and to “divide the number of substantive violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage.” Each instruction is paired with a separate fine matrix and no other ICE issued documentation instructs agents or attorneys to add the violations together. ICE’s I-9 inspection webpage also makes no mention of the double-dipping method of fine calculation.

    In evaluating NIFs, attorneys for employers should ask these questions:
    1. Are the fines calculated within the confines of the statute as updated by DOJ?
    2. What baseline and method did ICE use to calculate the fine in the instant case?
    3. What factors were used to aggravate or reduce the level of the fine?
    4. Were the factors appropriately used?
    5. Did ICE apply the 5% enhancement for employment of unauthorized aliens to only those violations as opposed to across the board?
    6. Did the NIF miscalculate the fines by double-counting violations? And
    7. Did ICE make other errors in its calculations?

    After evaluating these issues and trying to negotiate a settlement, one must assess the propriety of settling with ICE versus challenging the fine with an OCAHO ALJ.

    If you want to know more information on I-9 penalties/fines, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. USCIS Launches New Website E-Verify

    By: Bruce Buchanan, Sebelist Buchanan Law



    USCIS has launched a new website, E-Verify.gov. USCIS describes it as the authoritative source for information on electronic employment eligibility verification. E-Verify.gov is for employers, employees and the general public.

    The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. E-Verify.gov allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov.

    “For the past decade, E-Verify has been the cornerstone of our continued commitment to helping employers maintain a legal workforce,” said USCIS Director L. Francis Cissna. “E-Verify.gov now allows users to better understand and navigate through the employment verification process.”

    Employers can access E-Verify anytime, anywhere directly from a web browser. Nearly all employees are confirmed as work-authorized instantly or within 24 hours. The system has nearly 800,000 enrolled employers, which is still a small percentage of total employers in the United States.

    If you want to know more information on E-Verify, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  3. 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.
  4. Has the Trump Administration Revived ICE Raids?

    By: Bruce Buchanan, Sebelist Buchanan Law


    Immigration and Customs Enforcement (ICE), in conjunction with the IRS and the Tennessee Highway Patrol, raided Southeastern Provisions, a slaughterhouse near Morristown, Tennessee on April 5, 2018. The raid was pursuant to a criminal search warrant issued by a Federal judge in Eastern District of Tennessee earlier in the week.

    In so doing, ICE/Homeland Security Investigations (HSI) initially detained 97 workers, who were transported to a local armory. Of the 97 detained, 86 were put into ICE detention, 10 were arrested on federal criminal charges, and one was arrested on state charges. Later, 32 individuals were released from ICE custody due to a review of their biometrics, which established legal status or were released on their recognizance due to being a single parent with children at home.

    Additionally, the government seized lots of records and documents related to the company’s finances and payroll. After a review of these records and documents, it is expected the federal government will charge Southeastern Provisions with knowingly employing undocumented workers and various tax fraud offenses.

    This raid is very unusual in that ICE has not conducted any such large raids since August 2008, when it raided Howard Industries in Laurel, Mississippi. For the past 10 years, ICE has executed many so-called “silent raids” through the delivery of a Notice of Inspection (NOI)/subpoena. As an example, in January 2018, ICE appeared at 98 of 7-Eleven convenience stores nationwide to deliver NOIs. However, these were not raids pursuant to federal criminal search warrant.

    ICE released a statement about the Southeastern Provisions “operation” which stated HSI encountered “individuals who are determined to be subject to removal, will be administratively arrested and placed in removal proceedings."

    One of my initial questions was why the IRS was involved in the raid. A 26-page affidavit from an IRS Special Agent filed in federal court to obtain a criminal search warrant gives insight as to what led to the IRS’s involvement in the raid. It was due to probable cause to believe the company violated federal law by filing false tax returns, willfully failing to collect federal employment taxes, and evading the assessment and payment of other federal employment taxes.

    According to the affidavit, federal authorities were originally tipped off by bank employees about large cash withdrawals from Citizens Bank in Morristown made by management/owners of Southeastern Provisions. When bank employees questioned the transactions, the affidavit said they were told the cash was used for payroll. Investigators say $25 million in cash was withdrawn from the bank accounts beginning in 2008. Thereafter, for an unknown reason, bank officials toured the slaughterhouse in December 2016 and they were told by management that most of their employees were Hispanic and paid weekly in cash.

    The affidavit also states multiple withdrawals of more than $100,000 were made from Southeastern Provisions bank accounts. On IRS forms, Southeastern Provisions reported only 44 employees to the government. But based on aerial surveillance, 87 vehicles were found parked at the plant, leading authorities to believe the plant was employing 30-40 more undocumented immigrants. Using numbers from the investigation, the government estimated if Southeastern Provisions had properly reported wages to the IRS, they would have an additional $2.5 million payroll taxes from 2013-2016 on top of what they had already paid.

    Besides this information, the government use a confidential informant (referred to as CI-1 in the affidavit), who was hired by Southeastern Provisions. According to CI-1, he never completed any paperwork, such as an I-9 form, nor was he required to show any identification or documentation of lawful status before being hired. The informant said he was told he didn't need a lawful identity to work at the company. He also reported he was paid in cash. Additionally, the production workers were required to work overtime without being paid extra for their overtime hours, according to the informant.

    After the workers were detained, they were taken to a local armory for processing. The individuals who remain detained at the local armory have been taken to an ICE detention facility in Louisiana. Each will appear in Immigration Court, if not already the subject of a prior removal/deportation order. In Immigration Court, the detainees will be able to seek a bond to be posted for their release. There will also be hearings to determine whether there is a legal basis, such as Adjustment of Status, Cancellation of Removal, or asylum, to lawfully remain in the U.S. and obtain a green card.

    The looming question that this raid raises – does this mean ICE raids at employer facilities are back and will be used in worksite enforcement. Only time will tell. I will keep you updated.

    If you want to know more information on employer immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  5. 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.
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