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I-9s, No Match Letters and Raids –
How To Avoid Making The News
Presented by:
Cynthia K. Springer
Copyright 2008 by Baker & Daniels. These materials may not be reproduced, transmitted, or distributed without the express
written consent of the author. They are intended for information only and are not to be considered legal advice. If specific
legal issues are raised by matters covered in these materials, consultation with legal counsel may be appropriate.
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New Form I-9
BREAKING NEWS!!
• June 2007 is latest revision date
• Must use June 2007 version
• Do not re-do already completed forms
• June 2007 revision deletes five and adds
one acceptable Section 2 document
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New Form I-9
Deletes:
•
•
•
•
•
Certificate of U.S. Citizenship (N-560 or N-570)
Certificate of Naturalization (N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (I-327)
Unexpired Refugee Travel Document (I-571)
Adds:
• Employment Authorization Document (I-766) as
List A Document
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I-9 Basics
READ ALL ABOUT IT!!
• Must examine documents that establish:
– employee identity
– eligibility to work in the U.S.
• Eligibility documents must be those listed
on Form I-9
• Employee must complete Section 1
• After reviewing documents to see if
genuine, employer completes Section 2
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I-9 Basics
• If employee cannot present applicable
documents within 3 days after hire,
employer may not allow employee to work
• If employee shows limited employment
authorization period, employer must
re-verify before stated expiration date
• If employer learns employee not
authorized to work in U.S. or authorization
expired, must not allow employee to work
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I-9 Form
• Three parts:
– Section 1 – completed by employee
– Sections 2 and 3 – completed by employer
• Complete at time of hire; never before
offer accepted
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I-9 Form
GOOD NEWS!!
• No need to complete I-9 for:
– employees hired before 11/7/86
– independent contractors
– persons providing labor who are employed by
contractor providing contract services
– casual domestic workers in a private home on
sporadic, irregular or intermittent basis
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I-9 Procedural Checklist
Section 1:
• Employee completes, but employer
responsible for proper and full completion
• Translator may assist in completing and
must complete where indicated
• DO NOT consider Section 1 expiration
date in hiring decision, no matter how
close that date is to hire date
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I-9 Procedural Checklist
• Social Security Number only required
when employer participates in E-Verify
• If permanent resident, Alien Registration
number (starting with “A”) must be
included and correct
• If not permanent resident but authorized to
work in U.S., Alien number or Admission
number must be included and correct
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I-9 Procedural Checklist
• Section 1 must be completed by hire date
• DO NOT request documentation to verify
Section 1 information, but DO check that
Section 2 documents not inconsistent with
Section 1 information
• If employee lists Section 1 expiration date
but Section 2 documents do not contain
expiration date, cannot ask for document
to verify Section 1 expiration date
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I-9 Procedural Checklist
• Review Section 2 documents by
employee’s third day of employment
• If employee hired for less than three days,
must review Section 2 documents on first
day of employment
• Give employee list of acceptable
documents on or before hire date
• Tell employee he can produce one List A
document or one document each from
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List B and List C
I-9 Procedural Checklist
• If employee says his document has been lost,
stolen or destroyed, tell him he can present
receipt showing he has applied for
replacement, PROVIDED employee has
current employment authorization
• NEVER tell an employee which documents to
present or are preferred
• DO NOT request that the employee produce
an ICE-issued document; if an employee
asks what to produce, tell him it is his choice13
I-9 Procedural Checklist
• Be sure Section 2 documents are on the
list of acceptable documents
• If a document must be
unexpired, be sure it is
• Only original documents are
acceptable, except certified
copy of birth certificate
is acceptable
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I-9 Procedural Checklist
• Check Section 2 documents to see if
genuine, relate to employee, and
consistent with other employee information
• Check for obvious tampering or forgery
• Only reject if obvious defect
• Compare name on documents with name
on I-9
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I-9 Procedural Checklist
• Check document descriptive information
with visual comparison to employee
features
• If discrepancy, ask employee for explanation
• If employee explanation reasonable, attach
memo from employee with explanation
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I-9 Procedural Checklist
• Employer should designate person in
charge of IRCA enforcement
• When discrepancy identified, notify this
person
• IRCA enforcement officer should review
before further action taken
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I-9 Procedural Checklist
• Once Section 2 documents reviewed and
acceptable, employer completes Section 2
• If receipt presented, set up 90-day tickler
• Complete EVERY blank in Section 2
EVERY time even if document copies kept
• Complete Section 2 within 3 days after
hire date
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I-9 Procedural Checklist
• Copy Section 2 documents only if doing so
is Employer policy
• Copy documents for
ALL employees to avoid
discrimination charge
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I-9 Procedural Checklist
EXTRA! EXTRA!
• If employee gave receipt for application for
acceptable document, put in tickler file
• Must re-verify by 90th day of work, except if
receipt is temporary I-551 stamp on Form I-94,
must re-verify before I-551 expiration date or, if
none, within 1 year of issuance of I-94
• A RECEIPT SHOWING APPLICATION FOR
AN INITIAL GRANT OF WORK
AUTHORIZATION IS NOT ACCEPTABLE
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I-9 Procedural Checklist
• If employee lists Section 1 or List A or List C
expiration date, must re-verify
• Must re-verify by expiration date
• Ignore List B, U.S. passport or alien’s green card
expiration date
• If employment eligibility document and Section 1
expiration date differ, ask employee for explanation
• Attach copy of employee’s explanation to form
• If employee does not clarify but documents appear
genuine and relate to employee, re-verify by earlier
date
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I-9 Procedural Checklist
• If re-hire employee, no need for new form
if re-hired within 3 years of initial hire date
and still eligible to work
• Otherwise, do new form or re-verify or
update in Section 3
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Test Your
I-9 IQ
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Test Your
I-9 IQ
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Test Your
I-9 IQ
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Test Your
I-9 IQ
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Test Your
I-9 IQ
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Test Your
I-9 IQ
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Test Your
I-9 IQ
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Record Retention
• Keep I-9s separate from personnel records to
avoid discrimination claims
• Retain I-9s for at least 3 years after hire date
or 1 year after termination of employment,
whichever is later
• I-9s must be available for inspection by ICE
or DOL upon request
• I-9 violations may result in a fine of $110 to
$1100 for EACH EMPLOYEE for whom the
I-9 was not properly completed and/or
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retained
Electronic Storage
• It is now legal to store I-9s electronically
• I-9s also may be completed and signed
electronically
• Can also scan and store existing I-9s
• Performance standards must be met
ensuring reasonable controls to ensure
integrity, accuracy, reliability, security, and
that I-9s can be searched, retrieved and
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printed
Electronic Storage
• Advantages include:
– cost savings
– storage space savings
– can ensure proper
I-9 completion
– ease of searchability
– ease of re-verification
• If audited, can provide records electronically
• BUT, there are penalties for failing to comply
with standards
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Penalties for Hiring
Unauthorized Aliens
• If knowingly hire unauthorized alien,
penalties are (for EACH unauthorized
alien):
• First Offense: $375 to $3200
• Second Offense: $3200 to $6500
• Subsequent Offenses: $4300 to $16000
• BUT, if can show complied with I-9
requirements, this is a “good faith” defense
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Anti-Discrimination Provision
• IRCA also prohibits discrimination based on
citizenship (or lack thereof) for employer with 4+
employees
• Supplements Title VII protection against national
origin discrimination
• Employers with 4-14 employees subject to IRCA
national origin discrimination provisions
• Employers with 14+ employees covered by Title
VII national origin provisions
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Anti-Discrimination Provision
• IRCA protects U.S. citizens and nationals,
LAWFUL permanent residents, LEGAL
aliens, refugees and asylees
• There are added requirements concerning
naturalization for individuals in the last
4 categories to obtain IRCA protection
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Anti-Discrimination Provision
• Prohibits national origin or citizenship
discrimination in hiring, recruiting, referring
for a fee or discharging
• Does not cover compensation or other terms
and conditions of employment; may be
covered by Title VII
• Prohibits retaliation for filing a charge
• Prohibits employers from requesting more or
different acceptable documents if with intent
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to unlawfully discriminate
Anti-Discrimination Provision
• Cannot limit jobs to U.S. citizens unless
required by law, regulation or executive
order; required by government contract; or
when attorney general requires
• Can legally prefer U.S. citizen or national
over equally qualified alien
to fill a specific position, but
not as blanket policy
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Avoiding Discrimination Penalties
• DO NOT:
– Specify documents you want to see
– Require ICE-issued documents to establish
employment eligibility
– Request additional information or documents
if employee has Section 1 expiration date but
List C document has no expiration date
– Reject a document because it looks different
from ICE instruction booklet examples
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Avoiding Discrimination Penalties
• Do clarify inconsistent expiration dates and
re-verify at earliest date, if unable to clarify
• For re-verification, accept any acceptable List
A or List C document
• Don’t make further inquiry about employment
eligibility based on:
– The employee’s physical appearance or accent
– Mere rumor or hearsay
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Avoiding Discrimination Penalties
• DO make further inquiry if:
– ICE or SSA notifies you of discrepancy,
document is obviously forged or tampered
with, or name and descriptive information
does not relate to employee
– Receipt is for application for initial List A or
List C document
– Employee statements conflict with documents
– More than mere rumor or hearsay is obtained
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from workplace sources
“No Match” Safe Harbor Rule
• Employer has “constructive knowledge” of
a violation if it “reasonably should know”
employee is unauthorized to work in U.S.
• SSA has been sending “no match letters”
advising employers that employee names
and SSNs do not match SSA records
• Has been unclear whether receipt of letter
is constructive knowledge of violation
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“No Match” Safe Harbor Rule
• In September 2007, DHS finalized rule
• Rule was challenged, so DHS put out
“new” Proposed Rule in March 2008; it is
expected to be final by the end of 2008
• New rule says employer has constructive
knowledge upon receipt of letter
• If follow steps outlined in “safe harbor”
rule, can avoid liability for no-match
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“No Match” Safe Harbor Rule
• SSA will include DHS letter explaining safe harbor steps
• Steps currently require employer within 30 days to:
– Check records for typo; if typo, correct records and
provide correct info to SSA and verify against SSA
records using SSA phone or online confirmation system
– If not typo, ask employee to confirm information. If
employer’s records incorrect, correct them, give SSA
correct information and verify on SSA system
– If employee says employer record correct, ask
employee to contact appropriate agency to resolve; has
90 days
– If employee resolves discrepancy, verify resolution with
agency
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“No Match” Safe Harbor Rule
• Employers should DOCUMENT all
verification actions
• To avoid constructive knowledge charge, if
not resolved by 90th day, execute new I-9
by 93rd day as if new employee, EXCEPT
– employee may not use Section 2 documents
with challenged SSN
– employee must provide document with photo
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to establish identity
“No Match” Safe Harbor Rule
• If employee cannot satisfy requirements,
employer may terminate, but risk wrongful
discharge if authorized to work in U.S.
• Could opt to continue to employ and risk
that DHS will find constructive knowledge
• Can open employer up to civil and criminal
penalties
• Recommend consulting legal counsel,
especially until law better established
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E-Verify
• Was called “Basic Pilot”
• Allows employers to verify SSN
with DHS
• Now called “E-Verify”
• To use, must register, sign MOU, and train
employees using system
• I-9 still must be fully completed
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E-Verify
• Enter employee information from I-9 into
SSA database
• Initial report instantly checks information
• If “tentative non-confirmation,” check for
clerical error; if so, re-transmit
• Refer employee to SSA ONLY if:
– automated systems directs employer to do so
– employee contests tentative non-confirmation
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E-Verify
• Employee has 8 days to report to SSA
• Employer makes second SSA inquiry on
10th day to get final confirmation or nonconfirmation
• New Development: Adding photo records
to eliminate fraud; if have “photographic
non-match,” employer sends photo to DHS
(scan or mail); DHS notifies within 10 days
of final confirmation or non-confirmation 48
E-Verify
• Potential Drawbacks of E-Verify:
– Some states are challenging its legality
– MOU requires only accept List B documents
with picture, so could limit hiring opportunity
and may be deemed discriminatory
– MOU requires use for all verifications
– Must take action if discrepancy found
– Must avoid discriminatory use
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Tips To Avoid Common Mistakes
DON’T:
• Review documents before making job offer
• Ask questions about employment eligibility
before making job offer
• Be inconsistent in timing of employment
verification and hire date
• Be inconsistent in length of time job offer
remains open pending documentation
• Have hiring policy requiring U.S. citizenship or
green card
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Tips To Avoid Common Mistakes
DON’T:
• Require more or different documents than
those required for I-9
• Require U.S. citizenship when not required by
government contract
• Refuse to hire protected alien because work
authorization has expiration date
• Re-verify for permanent resident with green
card with expiration date
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DHS/ICE
ENFORCEMENT STRATEGY
Worksite Enforcement
•
Two pronged approach:
1. “Risk-based approach” of enforcement that targets
“the worst of the worst employers,” such as
employers who make knowingly hiring illegal
immigrants part of their business model. ICE “won’t
bring criminal charges against employers who
accidentally hire an illegal alien”
2. Create and foster “culture of compliance”
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Worksite enforcement
strategy
DHS has:
• Hired additional agents
• Focused on criminal prosecutions rather than
administrative penalties
• Renewed focus on certain industries
– Construction; food processing; restaurant; and agricultural
production
Worksite criminal investigations and enforcement
actions have increased drastically since
announcement of initiative
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Worksite enforcement –
Recent examples
• United States v. Tacuri (D. Mass.)
– Owner of roofing company indicted on
charges of employing and harboring illegal
aliens
– Owner alleged to have paid employees
without withholding any taxes
– Owner alleged to have rented rooms to illegal
aliens at his home
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Worksite enforcement –
Recent examples
• United States v. Ruiz et al. (W.D. Missouri)
– Poultry processor
– Seven managers, supervisors, and HR
personnel indicted on charges related to
hiring illegal aliens and inducing an illegal
alien to enter or reside in the United States
– 136 illegal aliens arrested
– Search warrant executed
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How does ICE conduct
investigation?
• Reviews documents
– I-9 audit
– Financial records
– SSA records
• Interviews witnesses
• Uses informants, by “flipping” employees, both
illegal aliens and supervisor
• Uses of undercovers
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RAIDS AND SEARCHES
Search warrant
• Sought from judge from U.S. Attorney's Office
and federal agency
• Requires sworn testimony
• Issued upon showing of probable cause that
evidence relating to a federal crime may be
found at the place to be searched
• Must be executed between 6:00 a.m. and 10:00
p.m., unless special circumstances and
authorization from judge
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Search Warrant
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What do agents do
during search/raid
•
•
•
•
Element of surprise through timing
“Shock and awe”
Effectively seal off premises
Attempt to interview as many employees
as possible
• Seize or copy documents and computer
related materials
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What to do during search/raid
• Request to see badges and identification. Write
down names and badge numbers
• Identify who is lead agent or person in charge
• Consider sending employees home
• Call counsel
• Observe/document places searched and items
seized
• Do not interfere with search/collection of
evidence
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Individual rights when law
enforcement asks for interview
• Ask what is subject matter of the investigation
• Ask if you are a potential target of the investigation
• Agree to be interviewed, or refuse to be interviewed
This right belongs to you and you alone
• Consult an attorney before making any decision about
whether you will agree to be interviewed
• If you choose to be interviewed, you have the right to:
– Request that the interview be conducted at a more
convenient time or place, or refuse to be interviewed
– Refuse to answer any specific question
– Stop the interview at any point
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A Plan for Responding
• Designate point of contact to interact with
Government
• Have copies of critical documents, e.g.,
I-9 Forms
• Keep critical documents in isolated, secure space
• Have counsel’s 24/7 contact information to call to
represent company in event of unexpected
Government visit
• Have different counsel’s 24/7 contact information
to call to represent employees in event of
unexpected Government visit
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What can be done to minimize
potential liabilities
• Effective voluntary compliance program
• Key features
– Periodic evaluation of effectiveness, e.g.,
monitoring, auditing, etc.
– System for reporting illegal/unethical conduct
without fear of retaliation
– Respond when discover non-compliance or
illegal conduct
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Who gets charged: company or
officer/manager/supervisor?
•
•
Company AND/OR individual managers,
supervisors, and/or officers can be
charged with violations
Will look at all of the circumstances to
determine who to charge
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What type of criminal charges are
used for enforcement?
• Employers (and their agents)
–
–
–
–
–
–
Harboring illegal aliens
Knowingly hiring illegal aliens
Money laundering
Conspiracy
Aiding and abetting
Forfeiture
• Illegal immigrant employees
–
–
–
–
Illegal re-entry after deportation
Identity theft
Falsely claiming to be U.S. citizen
Misuse of SSN
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What government
has to prove for conviction?
• Each substantive statute has different
elements
• Common element to all:
– Criminal intent = defendant acted ‘knowingly,’
that is, he realized what he was doing and
was aware of nature of conduct, and did not
act through ignorance, mistake, or accident
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