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I-9 E-Verify Immigration Compliance


  1. NLRB Says Unlawful to Threaten Deportation to Graduate Assistants

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    In a case where immigration law and labor law overlapped, the National Labor Relations Board’s Division of Advice issued an Advice Memorandum finding on one occasion that Washington University unlawfully threatened its graduate assistants who were involved in a union organizing campaign.

    The dispute began when SEIU, Local 1 (Union) began an organizing campaign among graduate students (graduate assistants) at Washington University, many of which were foreign students. During the campaign, the University sent an email to all graduate assistants. One of the University’s statements was:

    Foreign students...I have been told that if a graduate student union is formed,
    and this union goes on strike...all foreign students will lose their visas and have
    to leave the country
    . In my opinion, this would be terrible for our students and
    our program.
    The next day, a union organizer stated unionization would not have any effect on the graduate assistant’s visa status and there was no possibility of them being deported.

    Due to the contradicting information, the graduate assistants requested another meeting with the University. At this meeting, the University stated that they did not know what would happen, but information provided by the Department of Homeland Security indicated that if the Union were to strike, student-visa holders “could lose their status and be asked to leave the country.”

    Later in the campaign, the University emailed a FAQ document addressing the foreign student visa issue. The University stated:

    Question: Could a strike potentially have an impact on my F-1 visa status?
    To obtain an answer, the University contacted an outside immigration attorney
    and ICE. The information provided to the University is set out below.
    Answer: If graduate students are required as part of their academic program
    to “work” as graduate assistants teaching classes or conducting research,
    then continuing to serve in that capacity is required in order for the student to
    maintain a “full course of study” and thus to maintain their F-1 status.

    As 8 CFR §214.2(f)(14) states: Any employment authorization, whether or
    not part of an academic program, is automatically suspended upon certification
    by the Secretary of Labor … or the Commissioner of the Immigration and
    Naturalization Service …, that a strike or other labor dispute involving a work
    stoppage of workers is in progress in the occupation at the place of employment.

    Under such circumstances, F-1 visa students could be subject to deportation
    whether they continued to “work” or not
    . If students honored the strike and
    caused the suspension of their work status under 8 CFR §214.2(f)(14), they
    could be deemed out of status for having failed to maintain a “full course of
    Based upon this evidence, the Division of Advice concluded “the Employer violated Section 8(a)(1) of the Act by threatening that, in the event of a strike, “all foreign students will lose their visas and have to leave the country.” Furthermore, the Advice memo stated: “While a strike could potentially lead to such consequences for at least some graduate student employees, the Employer’s statement overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees. In many strike situations, graduate student employees in fact would not lose their visas, given the time that it takes the Secretary of Labor to certify the strike after being notified by the relevant school officials. Moreover, even where the Secretary of Labor does certify a graduate student employee strike, and foreign graduate student employees do lose their student visas, individual graduate student employees may well have some basis other than their student status for lawfully remaining in the United States, despite the Employer’s blanket statement that they all would ‘have to leave the country.’”

    However, the Employer’s other statements were lawful, as they either set forth the exact language of the applicable Federal regulations or accurately conveyed the possibility that a strike “could” lead to the loss of student visas.

    For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at
  2. California Provides Template for New Notice Requirement for I-9 inspections

    The California Labor Commissioner’s Office has released the template for the notice requirement of the state’s new law on I-9 inspections. As many of my readers know, California passed a law in late 2017, Immigrant Worker Protection Act, which requires that employers notify their employee workforce of any government I-9 form inspections within 72 hours or face potential penalties and fines. Prior to the release of this template, California employers who received a Notice of Inspection (NOI) had to create their own notice.

    Section 90.2(a)(1) of the California Labor Code requires employers to provide notice to current employees of any inspection of I-9 forms or other employment records conducted by an immigration agency, such as Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI), which is a part of ICE.

    The California law mirrors the NOI timing by requiring employers to provide a posted notice to employees within 72 hours of receiving the NOI. However, under federal law, an employer may request an extension of time on producing the I-9 forms and sometimes ICE will provide more than three days without an employer’s request. The California law does not provide any such extension of time. Therefore, California employers are still required to notify employees of the audit within that 72-hour time window.
    The posting of the notice should be where other government postings are located. The notice must be written in the language one usually uses to communicate with employees. California provided both English and Spanish versions of their sample template. Below is a copy of the template in English.

    For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and is available at

    See Notice to Employee - Labor Code section 90.2 here
  3. DOJ Settles National Origin Discrimination Claim Against New York Restaurant

    By: Bruce Buchanan, Sebelist Buchanan Law

    The Division’s Immigrant and Employee Rights Section (IER), within the Department of Justice has reached a settlement with Food Love 125 Inc., d/b/a Ichiba Ramen, a New York City restaurant, to resolve an investigation into whether the restaurant violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    The investigation was initiated by a worker, who filed a complaint with IER, alleging Ichiba Ramen’s former chef discriminated against a job applicant when it refused to hire him as a server because he was not Korean or Japanese. The investigation also revealed that prior chefs had not placed such limitations on the restaurant’s hiring of servers. The INA’s anti-discrimination provision prohibits employers with four to 14 employees from discriminating against individuals because of their national origin.

    Under the settlement agreement, Ichiba Ramen will pay a civil penalty of $2000, undergo training on the INA’s anti-discrimination provision, and post notices informing workers about their rights under the INA. The restaurant previously paid $1,760 in back pay to the affected applicant.

    This national origin settlement with the IER is fairly rare as the IER only has jurisdiction on national origin claims involving employers with four to 14 employees. Most national origin claims are filed with the EEOC, who has jurisdiction on national origin claims involving employers with 15 or more employees.

    For answers to many other questions related to the IER, national origin discrimination, and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at
  4. OCAHO Reduces Penalties for Two Related Companies

    By: Bruce Buchanan, Sebelist Buchanan Law

    In a calendar year with few decisions, Office of Chief Administration Hearing Officer (OCAHO) issued its last one in U.S. v. Integrity Concrete/American Concrete, 13 OCAHO no. 1307 (2017). In this decision, OCAHO substantially reduced the penalties assessed against Integrity Concrete, Inc. and American Concrete, Inc., which essentially acted as joint employers. This decision only involves the amount of the penalties as Respondents agreed to the liability.

    Factual Scenario for Integity

    Integrity, located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Thereafter, ICE served Notice of Suspect Documents on Integrity listing eight employees whose I-9 forms could not be verified as authorized to work. Integrity responded none of the eight employees were employed anymore.

    About seven months later, Integrity was served with a Notice of Intent to Fine (NIF), which charged the company with the failing to timely prepare I-9 forms for five employees, failing to ensure that three employees properly completed Section 1 of their I-9 forms, and failing to properly complete Section 2 or 3 of the I-9 forms for 16 employees. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and 5% enhancement for lack of good faith and seriousness of the violations.

    In Integrity’s answer, it challenged the penalties asserting it was a small employer, numbering 28 employees, which should account for a 5% statutory reduction in the penalty, bad faith should not have been found, and the penalties assessed would place an undue hardship on the company.

    Factual Scenario for American

    American, also located in San Diego, CA, was served with a Notice of Inspection (NOI) in January 2015. Later, American was also served with a Notice of Suspect Documents listing four employees whose I-9 forms could not be verified as authorized to work. American responded none of these employees were employed at its company. ICE assessed a fine of $24,684 based upon a baseline penalty of $935 and a 5% enhancement for lack of good faith and seriousness of the violations.

    ICE also served a separate NIF on American alleging it failed to timely prepare I-9 forms for 10 employees. ICE proposed a fine of $5,390 based on a baseline penalty of $440 plus 5% enhancements for lack of good faith, seriousness of the violations, and employment of three undocumented workers. American filed an Answer asserting it should have received 5% mitigation for each of these factors: small size of its workforce (48 employees), good faith, and the non-statutory factor of leniency toward small businesses.

    OCAHO’s Decision

    The first factor discussed was whether Integrity and American should receive 5% mitigation for being a small employer. ICE asserted the fact that both employers had small workforces, 48 and 28 employees, was inappropriate for determining whether they were small employers. ICE argued it should focus on gross sales and gross assets. The Administrative Law Judge (ALJ) for OCAHO disagreed and applied appropriate caselaw to find both to meet the definition of small employers; thus, they were entitled to the statutory 5% mitigating factor.

    Next the ALJ focused on whether Integrity and/or American should be assessed 5% enhancement for bad faith or 5% mitigation for good faith. ICE asserted three reasons for a finding of bad faith: Integrity backdated one I-9 form; both companies did not complete I-9 forms for some employees until after the NOIs issued; and their failure to present evidence that they utilize E-Verify.

    Although backdating alone is insufficient to support a finding of bad faith, the ALJ found several factors supported a finding of bad faith. However, the ALJ noted the use or non-use of E-Verify is not a factor which should be reviewed in determining good faith/bad faith.

    Concerning the employment of undocumented workers as an enhancement factor, the ALJ stated ICE failed to provide any evidence of their undocumented status. Rather, their enhancement was based on inclusion in the Notice of Suspect Documents. As the ALJ correctly pointed out, an allegation of undocumented status, which is essentially what placement on a Notice of Suspect Documents means, is not sufficient to prove undocumented status. Thus, no enhancement was added for this factor.

    Another issue involving Integrity was whether it established an inability to pay/hardship. The ALJ did not find such, despite a loss of over $600,000, because Integrity paid approximately $500,000 in salaries and benefits – much of which was paid to its shareholders.

    In determining the amount of the penalties, the ALJ was disturbed by the fact that $935 was the baseline penalty for Integrity while only $440 was the baseline penalty for American. Although the ALJ correctly noted the difference in the percentage of errors on the I-9 forms was the basis of the different baseline penalty, he found the companies should be assessed at approximately the same dollar amount and compliance rate alone is insufficient to justify wide variation. Thus, the ALJ assessed $400 baseline penalty for substantive paperwork violations and $500 for failure to prepare I-9 forms.

    Based on this analysis, Integrity was found to have committed five violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, Integrity is liable for $2,525 under Count I. Under Counts II and III, Integrity was liable for substantive violations for failure to properly complete three I-9 forms and 19 substantive paperwork violations, all assessed at $400 each. Therefore, Integrity is liable for $11,325.

    American was found liable for 11 substantive violations for failing to prepare and/or present I-9 forms. Each of these violations will be assessed at $500, which includes the $500 base fine, with the enhancement factor for seriousness of the violations and mitigation factor for the small size of the business cancelling each other. Accordingly, American is assessed a total civil penalty of $5,500.


    OCAHO may have slowed down on adjudication of cases but they will be back to speed once they get their allotment of ALJs. In the meantime, now is a great time to conduct an internal I-9 audit under the supervision of an experienced immigration compliance attorney. To find out more about internal I-9 audits as well as other employer immigration compliance issues, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at
  5. 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.
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