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I-9 E-Verify Immigration Compliance


  1. Pre-Population: Ever-Changing Positions from Immigration-Related Agencies

    By: Bruce Buchanan, Sebelist Buchanan Law

    The immigration-related agencies’ positions on the pre-population of data in Section 1 of the I-9 form is everchanging. At about the time of our publication of the book, The I-9 and E-Verify Handbook, Bruce Buchanan and Greg Siskind, 2d ed. (2017), the USCIS altered its position again.

    The USCIS added the following in I-9 Central, Section 1, Questions & Answers:

    Question: Can Section 1 of Form I-9 be auto-populated by an electronic system that collects information during the on-boarding process for a new hire if the employee is required to verify that the information is correct and can make corrections or add information if necessary?

    Answer: DHS regulations require that the employee completes Section 1 of Form I-9. Employers can offer employees electronic tools to facilitate the Section 1 completion process, as long as this regulatory requirement and the regulatory requirements for the electronic generation of Form I-9 continue to be met.

    This answer is contrary to the position that USCIS articulated in the E-Verify newsletter, November 2016, which the book quoted as follows:

    USCIS stated Section 1 of Form I-9 could not be pre-populated. Pre-population involves the electronic inclusion of data about the employee in Section 1 by Form I-9 software programs without the employee having to write the information in Section 1.

    See Chapter 2, Question 2.12, p. 23-24.

    Immigration and Customs Enforcement (ICE) and OSC (now renamed the Immigrant and Employee Rights Section (IER) of the U.S. Department of Justice) have not changed their positions which were discussed on p. 24 of The I-9 and E-Verify Handbook. Thus, ICE holds no official position on the pre-population of Section 1 by electronic Form I-9 software programs. This is a change in past policy in which ICE stated pre-population could not be done by employers. On the other hand, in August 2013, the OSC stated that it discouraged the practice of pre-population because “it increases the likelihood of including inaccurate or outdated information.”

    I invite anybody who has the book - The I-9 and E-Verify Handbook, which is available at, to alert me of any substantive changes that have been made in employer immigration compliance since the publication of the book. As we know, immigration law is everchanging and I want to keep the book up to date. I would like to thank Dave Fowler of Worksite Compliance Services for pointing out the change related to pre-population.
  2. When does Employer Need to Re-Verify Employee’s I-9 form?

    By: Bruce Buchanan, Sebelist Buchanan Law

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    From my observations of conducting numerous internal I-9 audits and representing employers in ICE I-9 inspections, I have noticed some employers do not comprehend when to reverify an employee. This article will try to simplify the process.

    If an employee is not a U.S. citizen or lawful permanent resident, he is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their document(s) on the I-9 form, pull the employee’s I-9 form before its expiration date, and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt reverification. 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.

    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, as discussed below, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized. An employee may present a Social Security card to show employment authorization at re-verification if the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS authorization” or “valid for work only with INS authorization.” This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid.

    Returning employees often do not need to complete a new I-9 form, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the I-9 form, if the formerly listed work authorization has expired. If a new version of the I-9 form has come out since the last time the I-9 form was completed, the employer may complete a new form or use Section 3 of the existing completed I-9 form. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new I-9 form. Plus, the employer should put the employee’s name in Section 1 and retain the new form with the original.

    One final reminder - green cards, driver’s licenses, and passports with expiration dates do not need to be re-verified.

    For more information on reverification and many other issues related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at
  3. I-9 and E-Verify Handbook – Book Review

    By: Bruce Buchanan, Sebelist Buchanan Law

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    As many of you know, Greg Siskind and I have published a book, The I-9 and E-Verify Handbook (2nd edition). If you would like to know more about the book, SHRM has just published a positive book review, where they discuss various aspects of the book. You may view the review at:

    If you would like to purchase the book, it is available at Amazon -
  4. California’s New Law Requiring Employee Notification of ICE Audits and More

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The State of California has a new law, “The Immigrant Worker Protection Act” (AB 450), which requires employers to notify its employees by written notice within 72 hours of Notice of Inspection (NOI) of I-9 records and to notify its employees, individually, of the results of the I-9 audit by Immigration and Customs Enforcement (ICE) within 72 hours of receiving the results of the NOI. Concerning these notifications, the Labor Commissioner is required to develop a template.

    The new California law also requires ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. The new law does not restrict ICE from providing a NOI to an employer demanding the employees’ I-9 forms within three days of service of the NOI and the employer being required to honor it. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a NOI or provided a judicial warrant.

    The penalty for a first offense is $2,000 to $5,000 and for each subsequent violation - $5,000 to $10,000. The enforcement of these penalties is under the exclusive authority of the Labor Commissioner or California Attorney General. Thus, employers or employees may not seek enforcement of the statute.

    The question that I have with this legislation is whether any of it is preempted under federal law, Immigration Reform and Control Act (IRCA). Under federal law, when ICE wants to inspect an employer’s I-9 forms, it issues a Notice of Inspection and usually an administrative subpoena. I don’t believe the portions of the legislation concerning notifying workers would be preempted by federal law. It’s unclear whether restricting access to non-public portions of the worksites is preempted.

    I will keep you updated on any litigation over this new state law. For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at
  5. New I-9 Form Must Be Used as of September 18

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    As I previously discussed in my July 19, 2017 blog, the USCIS released a new revised I-9 form on July 17, 2017. It becomes mandatory to use for new hires as of September 18, 2017. In the interim period, July 17 to September 17, use of the new I-9 form was optional. The newest I-9 form has a revision date of 07/17/17 N.

    There are no changes on the I-9 form or the Supplemental page. The minor changes are the addition of Consular Report of Birth Abroad (Form FS-240) to List C Acceptable Documents and minor wording changes in the instructions.

    USCIS has stated it will include these changes in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274). However, to date, the USCIS has not do so. I will keep you advised.

    In order to keep you compliant and answer your questions on completing the I-9 form, using E-Verify, and state immigration laws, I have co-authored a book with Greg Siskind, The I-9 and E-Verify Handbook, available from Amazon at:
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