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I-9 E-Verify Immigration Compliance

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  1. 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.
  2. Employers Beware: ICE is Targeting Companies Who Hire Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In mid-December, the federal government, through the U.S. Attorney’s office in Memphis and Immigration and Customs Enforcement (ICE), indicted 20 undocumented workers for using fake identification to get their jobs. These workers were employed at Expeditors International, a Memphis logistics company, and hired through a staffing agency, Provide Staffing Services.

    Robert Hammer, assistant special agent in charge with Homeland Security Investigations (HSI), a branch of ICE, stated the federal government is aggressively pursuing this case because the undocumented workers had access to a sensitive air cargo area at Memphis International Airport that required special clearance. “It is imperative for the safety and security of our airports, seaports and railyards that all individuals requiring this type of special vetting present valid and genuine identification documents in the hiring process,” he said.

    The U.S. Attorney for the Western District of Tennessee, Michael Dunavant, stated ICE plans to increase its focus on this type of criminal investigation in Tennessee throughout 2018. "Our enforcement strategy is going to be dual-pronged, focusing on both employers and the employees. According to the U.S. Attorney, no one with the companies that hired the workers has been indicted but the investigation is ongoing.

    If it is determined that the staffing company and/or Expeditors International had knowledge, actual or constructive, that the workers’ identification documents used in the I-9 work authorization process were fake, the companies and management would be subject to criminal prosecution by the federal government. It appears the federal government is taking this very seriously due to the workers’ access to a sensitive air cargo area that required special clearance.

    I expect ICE to continue to crackdown on employers’ use of undocumented workers in 2018. If you want a better understanding of the possible criminal and civil sanctions against employers within immigration compliance, I recommend you read my book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  3. EOIR Announces New ALJ for OCAHO

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Executive Office for Immigration Review (EOIR) announced the appointment of James McHenry as an administrative law judge (ALJ) in EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO), effective November 14, 2016. The arrival of ALJ McHenry will provide OCAHO with a permanent ALJ to replace one ALJ, Ellen Thomas, who retired, and another ALJ, who transferred out of OCAHO.

    OCAHO adjudicates cases of hiring of undocumented workers, I-9 verification violations, complaints of discrimination based on an individual’s citizenship status or national origin or overdocumentation in the employment eligibility verification process, and allegations of immigration*-related document fraud.

    ALJ McHenry earned a Bachelor of Science degree in 1997 from the Georgetown University School of Foreign Service and a Juris Doctor degree in 2003 from Vanderbilt University. Prior to his appointment to OCAHO, Mr. McHenry was an ALJ for the Social Security Administration. Before that, Mr. McHenry served in a variety of capacities with the Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE) and the U.S. Attorney’s Office.
    Tags: alj, eoir, i-9, ocaho Add / Edit Tags
  4. Respondent falsely claimed U.S. Citizenship on I-9 Form

    By Bruce Buchanan, Siskind Susser P.C.

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    The 8th Circuit Court of Appeals in Etenyi v. Lynch upheld the Board of Immigration Appeals’ (“BIA”) decision, wherein it found an individual’s status could not be adjusted because he had falsely claimed that he was a United States citizen on an I-9 form.

    Etenyi, a citizen of Kenya, applied for Adjustment of Status. The USCIS denied the adjustment because Etenyi filled out an I-9 form for an employer claiming to be a United States citizen. After being placed into removal proceedings, a hearing was held before an immigration judge (“IJ”). Etenyi testified that the I-9 form had been pre-populated with his personal information. Although he confirmed that his name, address, social security number, and date of birth were correct, he claimed that he did not notice the checked box asserting, under penalty of perjury, that he was a “citizen of the United States.”

    The IJ and the BIA held that Etenyi was removable because he had signed the I-9 form and thereby adopted its contents. The evidence at issue, as noted by the IJ, included the I-9 form with the false claim of citizenship, Etenyi’s testimony that he reviewed other information on the form before signing it, Etenyi’s signature, and the fact that Etenyi had a college-level education from an American university.

    The Court did not agree with Etenyi’s arguments. First, he argues that an I-9 form cannot serve as the basis for a false claim of citizenship in a removal proceeding. The BIA and the Court have consistently held that the language of 8 U.S.C. § 1324a(b)(5) does not preclude the use of an I-9 form in removal proceedings. Second, Etenyi relies upon Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008), to argue that DHS must present more than the I-9 form to satisfy its burden of proof. However, the Court found the I-9 form discussed in Kirong reflected the format of a prior version of the I-9 form, where an employee could check the box - “I am a citizen or national of the United States.” “This disjunctive phrasing rendered the alien’s statement ambiguous as to whether his ‘attestation involved a claim of citizenship or nationality.’” The box on Etenyi’s I-9 form states only that the applicant is “citizen of the United States.” Because this phrasing is unambiguous, an employee who attests to the validity of the checked “citizen of the United States” box by signing this I-9 form has made an objectively false representation of citizenship.

    Takeaway:

    This decision demonstrates the enormous consequences that falsely claiming U.S. citizenship can have on an immigration case. One can no longer rely upon the ambiguity of marking “U.S. Citizen or U.S. National” if the I-9 form was completed in the last six years. That’s when the USCIS separated the two statuses into separate boxes.
  5. OCAHO finds ICE did not Pierce Corporate Veil

    By Bruce Buchanan, Siskind Susser

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    Contrary to the assertions of Immigration and Customs Enforcement (ICE), Office of Chief Administrative Hearing Officer (OCAHO) found two companies owned by the same shareholders and with the same officers, could not both be found liable for I-9 form violations. See U.S. v. PM Packaging, Inc and PM Corporate Group, Inc. d/b/a PM Packaging, 11 OCAHO no. 1253 (2015).

    ICE served a Notice of Inspection (NOI) on PM Packaging at its one facility in Compton, California. Within a month, PM Packaging closed the facility but ICE continued the case with issuance of a Notice of Suspect Documents and Notice of Intent to Fine. After the parties could not resolve the matter, ICE issued a Complaint against PM Packaging and PM Corporate.

    PM Corporate asserted it was a separate entity than PM Packaging because no assets or employees were ever transferred between companies, and they had different premises and purposes. The only connection between the two entities is the same shareholders and officers. OCAHO found common ownership alone was insufficient to pierce the corporate veil. Thus, PM Corporate was not liable for any of PM Packaging’s I-9 form violations.

    As for the alleged violations, PM Packaging argued it was not liable for 28 violations, the failure to properly complete Section 2 of the I-9 forms, because they were technical errors. OCAHO found to the contrary, and stated they were substantive errors – failure to print the name of the employer representative who signed Section 2 (and the signatures were illegible) and failure to record the issuing authorities or expiration dates on many of the I-9 forms without retaining legible copies of the documents in question. Thus, penalties must be assessed for these substantive errors.

    PM Packaging was successful in reducing the amount of the penalties. ICE sought $53,762.50 in penalties. PM Packaging asserted these penalties were excessive and OCAHO agreed. It found the penalties should be assessed at $500 or $600 each, rather than $1,075.25 each. OCAHO’s reasoning was this level of penalties could not have a deterrent effect because the business had ceased to exist. Furthermore, maximum penalties were reserved for the most egregious violations, of which more than half of the violations in question did not meet the criteria.
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