You don't have to employ an "Alien" to
be in trouble with USCIS and ICE
Issues in maintaining I-9 forms for U.S. Employers
Presented by
Nalini S. Mahadevan
nmahadevan@lowenbaumlaw.com
314-746-4860
Diane E. Metzger
dmetzger@lowenbaumlaw.com
314-746-4802
WHO IS THE ALIEN?
Historical Background

The Immigration Control and Reform Act of 1986

Purpose: to ensure that only work authorized individuals
are hired

Achieve this goal by requiring employment verification
and imposing employer sanctions

I-9 Employment Eligibility Verification Form requires
employers to attest to their employees’ work
authorization
Who are the players?
U.S. Citizenship and Immigration Services (USCIS)
www.uscis.gov
 U.S. Immigration and Customs Enforcement (ICE)
www.ice.gov
 U.S. Department of Justice, Civil Rights Division,
Office of Special Counsel for Immigration Related
Unfair Employment Practices (OSC) www.osc.gov

The Key Players
MO STATE
THE EMPLOYER
USCIS
I-9/E-VERIFY
ADMIN
ICE
AUDITS I-9
CHECKS WORKER STATUS
YOUR
CLIENT
OSC
INVESTIGATES
DISCRIMINATION
USCIS
I-9 and E-verify
 I-9 form is for the collection of identity and work
authorization documents





All employers
Complete I-9 on 1st day of work
Keep for 3 years from date of employment -orFor 1 year after worker leaves

Whichever is later
Hiring caveats
Employers must not refuse to hire anyone (for
immigration/status reasons) who can show identity
documents and valid work authorization
 Employers cannot ask for particular documents
 I-9 applies to all new hires after Nov. 6, 1986.



A few exceptions
Avoid “citizen only” hiring policies
Hiring and Firing Decisions

Base all firing decisions on performance and/or
behavior rather than:





Appearance
Accent
Name
Citizenship status
Likewise, do not make hiring decisions based on these
parameters
E-Verify

What is E-Verify?



Internet-based system that allows businesses to determine the
eligibility of their employees to work in the United States.
http://www.dhs.gov/e-verify
When and how to use E-Verify




Complete after hiring
Not before hiring as a pre-screening tool
Don’t ask prospective employee to self verify before job offer
Not mandatory now, except under certain circumstances
according to State Laws
ICE

Audits conducted of I-9 forms

After information received from




Local law enforcement (J & J Supply Company)
Complaint from worker (U.C.-San Diego Medical Center)
Whistleblower or information received by ICE (OSC Complaint Form)
Why do we care?

Penalties and forfeiture
OSC
Investigates complaints of discrimination by workers
 What would you do?
 Examples


(See OSC handout)
Example 1:
Your Crew Boss catches you before you start
interviewing people for an open position.
 He says, “Find out if those two near the door have
their ‘green cards’ before you waste your time.”
 If you do this, did you discriminate in hiring?

Example 2:
After hearing about the penalties for hiring
undocumented workers, the CEO of your company
wants to ensure that only work authorized individuals
are hired.
 The CEO issues a memo stating, “Please be careful
when hiring people who look like they crossed the
border illegally.”
 Has the CEO committed National Origin discrimination?

Example 3:
The rainy season caused your crop yield to be less than
expected, so you are forced to let some of your farm
workers go.
 Your choices are to either let go either Hector (a lawful
permanent resident) or Jose (an asylee with a temporary
work permit).
 You chose to let go Jose because he only has a
temporary work permit.
 Have you committed citizenship status discrimination?

Example 4:
You gladly hire Lily who gained fashion production
experience in Taiwan.
 When Lily hands you a California driver’s license and an
unrestricted Social Security card to complete the Form
I-9, you are surprised.
 You ask Lily to instead provide a document issued
instead by DHS.
 Have you acted lawfully?

Document abuse?
Tips and Best Practices
“But it’s just a 2 page form…”
 Common mistakes
 Unforeseen discrimination
pitfalls

I-9 Discrimination pitfalls







Consider completing the I-9 only after job offer has been
made
Don’t ask for a particular document
Don’t ask for more documents than required
Don’t reject a document that looks genuine
Don’t reject a document because it has a future expiration date
Don’t make “blanket” decisions to hire only U.S. workers
Do use the same procedure for all employees
A Hiring “Don’t”
E-Verify Discrimination pitfalls
Do use E-Verify for all new hires if your company has
signed up, or if you are required to do so by State laws
 Don’t “pre-screen” employees for verification
 Don’t ask an employee to provide an E-Verify SelfCheck report
 Don’t go back and “double check” a current employee’s
employment authorization
 Don’t assume that a “TNC” means the employee is
illegal or not work authorized

ICE Enforcement
ICE Press Release 04/20/06

“[W]hen we find those employers who don't want to do the right thing,
we're going to target our criminal efforts and bring all the criminal
statutes that we can to bear against them. We've learned all too well,
from watching the old INS, that just a small fine or a slap on the wrist
is not a deterrent to businesses who want to violate our work site
enforcement laws. That's the reason that we see more robust criminal
cases built against negligent employers blatantly violating the law as a
much stronger deterrent. The prospect of 10 years in prison
carries much sharper teeth than just a small fine.”
- Julie Myers, former Assistant Secretary for ICE Enforcement Press
http://www.dhs.gov/xnews/releases/press_release_0892.shtm
ICE Enforcement: The Facts





I-9 Audit and Notice of Inspection
3 days notice to employers before inspection of I-9
Forms
Penalties: both Civil and Criminal
Penalties for both actual knowledge and constructive
knowledge of violations
“Intentional avoidance” of I-9 rules
ICE Enforcement: The Figures

Nationally in Fiscal Year (FY) 2011, ICE:
 Conducted 2,496 I-9 audits
 Initiated 3,291 worksite enforcement cases
 Criminally arrested 221 employers
 Issued 385 Final Orders for $10,463,987 in fines
 Debarred 115 individuals and 97 businesses,
compared to 0 individuals and 0 businesses in FY
2008.
ICE Fines in Previous Years
What if I don’t comply?
ICE has increased its audits… a lot
 Failure to properly complete, retain, or make the I-9
available to DHS, fine ranges from $110.00 to $1,100.00
per violation
 Knowingly hire or continue to employ an illegal worker




1st offense- $375.00 to $3,200.00
2nd offense- $3,200.00 to $6,500.00
3rd+ offense- $4,300.00 to $11,000.00

Fines are per violation/per worker!
How do you look in orange?

On March 21, 2011, a St. Louis woman was sentenced to one
year in prison followed by a six-month term of home
confinement and two years of supervision

Charges: transporting, harboring and hiring illegal aliens to work
at the Chinese restaurant she managed.

Other penalties: Authorities seized a 2008 Highlander, a 2005
Chevrolet passenger van, $34,000 in cash, and real estate worth
more than $350,000 was also ordered forfeited.

http://www.ice.gov/news/releases/1103/110322stlouis.htm
Another twist: Marriage and Visa Fraud
 Another
interesting discovery during the raid…
 The woman’s uncle was paid by the woman and
her father to travel to China to marry a Chinese
woman for the sole purpose of obtaining U.S.
visas for the woman and her two children.
 In exchange for the U.S. visas, the Chinese
woman and her two children were bound to
work for the woman and her father in the
United States for three years each.
 The visa applications were denied.
J & J Supply Inc.
The owner of J & J Supply Inc., drove five of his illegal
alien employees in his 2011 Toyota Highlander to the
Mexican Consulate in Kansas City to obtain Mexican
Consular identification cards.
 On his return trip, he was stopped for speeding in St.
Charles County.
 It was found that during a 12-month period, the
company employed 10 or more illegal aliens
 The company had to forfeit $150,000 and the 2011
Toyota Highlander used to facilitate the illegal activity.
The company also received one year of probation.

University of California San Diego
Medical Center

On January 4, 2012, the Justice Department reached an
agreement with the University of California San Diego Medical
Center, resolving a complaint filed on Dec. 6, 2011.

The complaint alleged that the medical center subjected newly
hired non-U.S. citizens to excessive documentation requirements.

More facts to the case…

The medical center agreed to pay a civil penalty of $115,000,
conduct supplemental training of its human resources personnel,
and work with government officials to ensure future
compliance.
Krispy Kreme
Tip from the local sheriff ’s office that Krispy Kreme
was employing illegal aliens led to an I-9 audit
 The I-9 audit confirmed this, and in Sept. 2007, a
Notice of Intent to Fine was issued
 In July 2009, a settlement was reached with the Krispy
Kreme Corporation for $40,000
 It had 25 unauthorized workers and
did not have proper I-9’s for all of
its workers

Abercrombie & Fitch
A November 2008 I-9 inspection of A & F’s retail
stores in Michigan uncovered numerous technologyrelated deficiencies in A & F’s electronic I-9 verification
system.
 No “bad faith” here, but still had to pay more than a $1
million fine.
 “Employers are responsible not only for the people
they hire, but also for the internal systems they choose
to utilize to manage their employment process…”

- Special Agent Brian Moskowitz
What’s an Employer to Do?





Review the company’s current I-9 practices
Consider performing an internal I-9 audit
Consider the use of E-Verify
Be vigilant when utilizing third parties to supply employees
Be especially vigilant in certain industries, but no industry is safe!
Thank you!
Questions and Answers