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I-9 E-Verify Immigration Compliance


  1. New I-9 Form, effective January 22, 2017

    By Bruce Buchanan, Sebelist Buchanan Law

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    On November 14, 2016, the USCIS finally issued the new I-9 form, effective January 22, 2017. The current I-9 form continues to be in effect; however, during the interim period before January 22, 2017, an employer may use either the current 2013 version or the 2017 version. The new I-9 form has an expiration date of August 31, 2019.

    The most significant change is to make the downloadable I-9 form into a “smart” form. What does a “smart” form mean? It is not an electronic I-9 form. The downloadable I-9 form, using an Adobe reader, has been enhanced with error checking which is designed to prevent the most common mistakes. An example is if you fail to fully complete section 1 of the I-9 form, you will receive an alert that you did not enter data into all of the required fields.

    Employers filling out the smart I-9 version must still print the form, obtain signatures, monitor reverifications and updates. Second, if you use the smart form and make a mistake, your company will be held to the same standard of review when faced with an Immigration and Customs Enforcement (ICE) inspection.

    With the addition of the “smart” form, there are three types of I-9 forms: paper, “smart”, and electronic.
    Some of the other changes are:
    (1) Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field;

    (2) Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;

    (3) Requiring you designate whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (however the numbers are the same though the more recent green cards refer to the number as USCIS);

    (4) Requiring “N/A” be entered instead of blanks in certain fields;

    (5) Replacing the word “date” to “today’s date”, next to signature boxes (this may help some people from entering their birthdate or from backdating the signature);

    (6) Providing a box for employees to check if they did not use a preparer or translator;

    (7) Modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators;

    (8) Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability to avoid having to note this information in the margins of the I-9 form; and

    (9) Increasing the pages of instructions from 6 to 15.

    Although most of the changes may not appear significant, I would advise employers to seek legal advice from an immigration attorney as to compliance with the new I-9 form.
  2. OCAHO Finds No Fruit of Poisonous Tree

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In one of the most interesting recent decisions, the Office of Administrative Hearing Officer (OCAHO) rejected the company’s argument that the I-9 forms in error or missing were the “fruit of the poisonous tree” and should be excluded from the evidence considered. See U.S. v. Frimmel Management, LLC, 12 OCAHO no. 1271c (October 2016).

    This case arises out of the notorious Maricopa County, Arizona and Sheriff Joe Arpacio. The Maricopa County Sheriff’s Office (MCSO) conducted a criminal investigation into Frimmel Management alleging it knowingly hired or employed unauthorized workers. A state court dismissed the criminal complaints for a variety of reasons involving misdeeds by the MCSO.

    Because of MCSO’s investigation, Frimmel Management’s identity was disclosed to Immigration and Customs Enforcement (ICE), who decided to issue a Notice of Inspection (NOI). Thus, in August 2013, ICE issued a NOI and subpoena on Frimmel Management. The company provided the I-9 forms that it possessed but many employees did not have any I-9 forms and others had I-9 forms fraught with errors.

    As a result, ICE filed a Notice of Intent to Fine, a Complaint and Amended Complaint alleging numerous errors. Count I alleged 225 violations for failure to ensure employees properly completed Section 1 and/or the company failed to complete Sections 2 and 3 of employees’ I-9 forms. Count II alleged the same type of violation except all the employees were unauthorized to work. Counts III and IV alleged Frimmel Management failed to prepare and/or present I-9 forms for 63 employees, 29 of which were alleged to be unauthorized.

    ICE sought a $935 baseline penalty based upon 84% error rate and aggravated the violations for lack of good faith and the employment of some unauthorized workers.

    Frimmel Management argued all of the violations violated their 4th and 5th Amendment rights as the evidence was gathered illegally; thus, asserting the documents were the “fruit of the poisonous tree.” However, OCAHO declined to exclude this evidence because the only information that ICE obtained from the MCSO investigation was the identity of the company. OCAHO cited Supreme Court caselaw that this did not constitute grounds for exclusion as “fruit of the poisonous tree.” OCAHO agreed. OCAHO also stated even assuming ICE’s evidence was the “fruit” of MCSO’s illegal conduct, the evidence was not a “direct result” of MCSO’s conduct. Thus, this argument also failed.

    There was very little dispute about the I-9 form errors – Frimmel Management committed numerous substantive paperwork violations, including failure to prepare I-9 forms, failure to ensure the employees checked an appropriate box as to their work authorization – U.S. Citizen, permanent resident, etc., failure to ensure employees signed the attestation, and failure to provide appropriate information in Lists A, B or C.

    Thus, ICE determined Frimmel Management committed 380 violations. The company was successful in showing ICE could not establish 38 employees were unauthorized. ICE relied on several documents, including a Notice of Suspect Documents, which were insufficient to prove unauthorized status.

    OCAHO did lower the baseline penalty to $900 for most of the violations and $1000 for the ones involving unauthorized workers.; thus, the total penalty was $347,500.

    This case demonstrates the need for employers to be aware of their I-9 obligations and to take them seriously. If Frimmell Management had been more careful in the completion of the I-9 forms and had completed I-9 forms on all employees hired, their penalties would have been much lower.
  3. Court Upholds OCAHO’s Penalty Finding

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Second Circuit Court of Appeals in Buffalo Transportation, Inc. v. USA upheld the penalties assessed by the Office of Chief Administrative Hearing Officer (OCAHO). Previously, OCAHO found Buffalo Transportation, Inc. (BTI) violated the Immigration Control and Reform Act by committing 135 substantive violations and assessed a civil penalty of $75,600.

    In its appeal, BTI contended 54 of the 135 violations were technical, rather than substantive, violations. For these 54 violations to be dismissed, BTI would have to be successful in their appeal and Immigration and Customs Enforcement (ICE) would have to not give BTI 10 days to correct the technical errors.

    The issue before the Court was whether OCAHO correctly determined that the 54 Form I-9s presented to ICE were not prepared within three days of the employees’ hiring date. Under the applicable regulation, an employer must prepare an I-9 form within three days of hire and failure to do so is considered a substantive violation.

    In determining this issue, the Court applied deference to OCAHO’s interpretations of the relevant regulations regarding the timing of when I-9 forms must be prepared. After applying the appropriate deference, the Court stated OCAHO correctly determined there was no evidence that any of the I-9 forms were timely prepared; rather, the 54 Form I-9s were prepared after ICE delivered its Notice of Inspection to BTI.

    BTI also asserted it should have been given a warning notice rather than a penalty. However, the Court noted it is within the discretion of ICE to do so and in this case, ICE declined to use their discretion to issue a warning notice. Thus, the Court could not order ICE to issue a warning notice.

    Additionally, BTI argued it kept copies of the employees’ documents reflecting work authorization which shows substantial compliance. The Court noted the regulations clearly do not allow retention of these documents to relieve the employer from completing section 2 of the I-9 forms.

    Finally, BTI argued the amount of the penalties was arbitrary. The Court noted OCAHO considered the statutory factors and ability to pay and reduced the penalties accordingly. The Court concluded OCAHO made an “allowable judgement” in determining the penalties and it would not and could not substitute its judgement.

    This decision is consistent with most other court of appeals’ decision which uphold OCAHO’s findings and the assessment of the penalties.
  4. USCIS Offers New Guidance on Pre-Population of I-9 Forms

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In the most recent E-Verify Connection, Number 33, released in November 2016, the United States Citizenship and Immigration Services (USCIS) has re-visited the issue of the “pre-population” or “auto-population” of employee data into section 1 of an electronic I-9 and offered clear guidance.

    What is “pre-population” or “auto-population” of employee data? It is when portions of the I-9 form have already been filled out by a computer program before the employee or employer has started to complete the I-9 form.

    The E-Verify Connection raised and answered the following question: can Section 1 be auto-populated in the case of an electronically prepared Form I-9? Answer: “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.”

    Agencies have differed on Pre-population of Section 1 Data

    Three different agencies have taken positions on whether an employer can pre-populate portions of section 1 of the I-9 form and provided differing views.


    USCIS first addressed the issue in August 2012 and stated they were “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resources system provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.”

    However, six months later, USCIS said that employers should not electronically pre-populate section 1, even if the employee has the opportunity to review the information before signing. Then, at a later date, the USCIS stated it was not taking a position on the issue.


    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) said in a Technical Assistance Letter (TAL), dated August 20, 2013, it discouraged the practice of pre-population because it "increases the likelihood of including inaccurate or outdated information.... (which) may lead an employer to reject documents presented or demand specific documents for Section 2 purposes.“ Additionally, the OSC noted that pre-populating section 1 may be a problem if the new hire was not proficient in English.


    Immigration and Customs Enforcement (ICE) originally stated section 1 pre-population in an electronic I-9 was permissible if the employer also completed the preparer and/or translator section. In early 2013, ICE changed its position to that it was never permissible regardless of whether the preparer and/or translator section was used and regardless of whether the employee inputted the information that is pre-populated into the system. But in October 2013, ICE changed its position to it had no specific position on the issue and advised employers to simply follow the “regulations.” However, the regulations currently do not address the specific issue of pre-population in Section 1. Additionally, it stated it would evaluate the matter on a case by case basis.

    Why is the Issue of Pre-Population Important?

    In a Notice of Inspection, ICE analyzes an employer’s I-9 forms. If it deems the pre-population of section 1 to be a substantive violation, the employer is subject to a penalty. If all the employer’s I-9 forms were pre-populated, then that would be subject to a penalty of about $2000 (under new increased penalties) per I-9 form in error.

    Some Section 2 Fields Can Be Pre-Populated
    In this same E-Verify Connection, the USCIS stated the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.


    This new guidance is just another example of the perils of the I-9 form and the need for employers to conduct internal I-9 audits under the supervision of an immigration compliance attorney.
  5. Employer Successful in Greatly Reducing Penalties at OCAHO

    By Bruce Buchanan, Sebelist Buchanan Law

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    As previously stated, OCAHO has recently issued several decisions including U.S. v. St. Croix Personnel Services, Inc., 12 OCAHO no. 1289 (October 2016). In SCPS, OCAHO found in favor of the employer on eight of the 17 alleged violations, thereby reducing the penalty sought from $16,690 to $5,450.

    SCPS, based in Minnesota, was served with a Notice of Inspection and subpoena in September 2013 and thereafter provided 16 Form I-9s to Immigration and Customs Enforcement (ICE). ICE issued a Notice of Intent to Fine and then a Complaint alleging the 16 form I-9s were in violation of the Immigration Reform and Control Act for failure to timely complete sections 1 or 2 of the I-9 form plus failure to provide an I-9 form for one employee. In its Answer, SCPS admitted to nine violations – the one failure to prepare an I-9 form and eight of the 16 other violations. However, it denied the other eight violations, arguing they were timeliness violations and were beyond the five-year statute of limitations. Furthermore, SCPS asserted two of the eight individuals were owners, not employees; thus, no I-9 forms were required. Finally, it asserted the penalty amount was excessive and sought the minimum of $110 per violation.

    ICE sought a baseline penalty of $935 per violation based upon an error of over 50%. Moreover, it aggravated the penalty by 5% ($46.75) but never disclosed what the aggravation was based upon. Therefore, OCAHO declined to aggravate the penalty.

    The major issue before OCAHO was whether eight I-9 forms were barred by the five-year statute of limitations. The evidence established SCPS failed to ensure the employees completed section 1 on their first day of employment and failed to complete section 2 within three business days of their hire dates.

    OCAHO carefully analyzed this issue and reviewed the eight employees’ dates of hire and the dates I-9 forms were competed. The complaint was filed on July 30, 2015; thus, any timeliness claims which occurred before July 30, 2010 were time-barred. OCAHO found the eight employees in question were hired between April 2, 1999 and October 1, 2007 and section 2 should have been completed within three days thereafter; thus, all eight allegations occurred before July 30, 2010. Based upon this analysis, OCAHO dismissed the eight allegations as time-barred. In so doing, it did not address whether the two owners had to have I-9 forms.

    Concerning the five statutory factors in assessing a penalty, small business, seriousness of violation, good faith/bad faith, employment of unauthorized workers, and history of violations, OCAHO found the violations were serious and a 5% aggravation was appropriate. However, it found SCPS was a small business, which should receive a 5% mitigation based upon this factor. The other three factors – lack of good faith, no unauthorized workers, and no history of violations, were treated as neutral.

    In conclusion, OCAHO found SCPS deserved leniency due to consideration of the public policy of leniency to small businesses. As such, OCAHO assessed a $650 penalty for the failure to prepare one Form I-9 and $600 per violation for the other eight violations for a total of $5,450.

    SCPS’counsel, DeAnne Hilgers, said “SCPS Personnel was willing to acknowledge liability where it was liable, but felt strongly about defending itself where it was not liable rather than capitulate. The court agreed with my client.”

    Thus, through litigation, SCPS was able to reduce the penalty by about two-thirds, which should be considered a major victory for the employer.
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