Employment Eligibility
Verification (Form I-9)
Compliance
March 2007
Enrique Gonzalez III
Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
One Alhambra Plaza, Ste. 600
Coral Gables, FL 33134
Phone: (305) 774-5800
Fax: (305) 774-6666
egonzalez@fragomen.com
www.fragomen.com
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ENFORCEMENT IN THE
NEWS
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Enforcement in the News
•
August - ICE arrests 41 illegal aliens working at America’s Fair in Hamburg, NY; 51 illegal
aliens arrested at Oklahoma saddle factory during search warrant execution
•
July - ICE agents arrest 3 illegal alien workers in Gulfport; Employers in Arkansas, Kentucky
and Ohio hit with criminal charges in connection with illegal alien employment schemes
•
June - ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles
International Airport; ICE arrests 55 illegal aliens working at secure construction site on
grounds of Dulles International Airport
•
May - ICE arrests unauthorized workers at L.A. Department of Water and Power; ICE arrests
29 unauthorized workers at construction company that services Camp Pendleton Marine
Corps Base
•
April - ICE agents arrest seven managers of nationwide pallet company and 1,187 of the
firm’s illegal alien employees in 26 states
•
March - ICE Worksite Enforcement Operation Nets More Than 50 Illegal Aliens
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WORKSITE ENFORCEMENT
• Expansion of the current “Basic Pilot” system nationwide
• Verification System interoperable between DHS and SSA
• Must electronically re-check all U.S. workers, including
citizens
• Machine-readable, tamper-proof ID containing biometrics
• Documents used to verify employment limited to tamperresistant and machine-readable Social Security Card or
Employment Authorization Document
• Substantial increase in fines
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I-9 UPDATE
• On October 30, 2004, the President signed a new
bill into law, amending Section 274A(b) of the
Immigration and Nationality Act (INA).
• The law became effective on April 28, 2005
• The new law permits, but does not require,
employers to complete, sign and store I-9s
electronically
• The new law allows employers to go “paperless.”
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I-9 UPDATE
(con’t)
• DHS finally published implementing regulation on
June 15, 2006
• New I-9 regulation is technology-neutral
• Permits employers to adopt any electronic storage
technology so long as it meets certain minimum
standards, including adequate security features that
• limit access to authorized personnel
• insure data integrity
• provide means for producing hard copies
• include search and indexing mechanisms
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SSA “NO MATCH” LETTERS
• ICE published proposed rule on June 14, 2006
• Provided suggested procedures for employers
who receive SSA “no match” letter
• Procedures also apply when employers receive
notification from DHS that immigration status or
EAD reported for employee does not match
agency records
• Employers who follow suggested procedures would
be provided with “safe harbor” against sanctions
• ICE is accepting comments and final rule may
reflect public input
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SSA “NO MATCH” LETTERS
(con’t)
• Employers who receive “no match” notification are
advised to:
•
1. Check their records for possible clerical errors
2. If necessary, request the employee's confirmation of
the employer's records
3. If the discrepancy still cannot be resolved, repeat the
Form I-9 employment eligibility verification process.
If properly followed, these procedures could safeguard
the employer from a finding that it knowingly hired or
continued to employ an unauthorized worker in violation
of the Immigration Reform and Control Act of 1986
(IRCA).
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DHS’s NEW IMAGE PROGRAM
• DHS announced program in July 2006
– ICE Mutual Agreement between Government and
Employers (IMAGE), created by U.S. Immigration
and Customs Enforcement (ICE)
– Designed to build cooperative relationships
between government and businesses and reduce
unauthorized employment
– Participation is voluntary
– Companies that comply with program
requirements will be “IMAGE certified”
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IMAGE
(con’t)
• Employer participants must:
– Agree to a Form I-9 audit by ICE
– Use USCIS’s Basic Pilot Employment Verification
Program when hiring employees
• Basic Pilot is an internet-based system that provides an
automatic link to federal databases to help employers
determine eligibility of new hires
• To date, Basic Pilot has experienced substantial delays in
providing verification to employers
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IMAGE
(con’t)
• To become IMAGE-certified, employers must
adhere to “best practices” such as:
– Creating internal training programs for completing
employment verification forms and detecting
fraudulent documents
– Arranging for audits by neutral parties
– Establishing protocols for responding to SSA nomatch letters
– Establishing a tip line for employees to report
violations
– Establishing mechanisms for company to self-report
violations to ICE
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IMAGE
(con’t)
• Benefits to employers:
– ICE will provide training and education to IMAGE partners on
proper hiring procedures, fraudulent document detection and
anti-discrimination laws
– ICE will also share data with employers on the latest illegal
schemes used to circumvent legal hiring processes
– ICE will review the hiring and employment practices of IMAGE
partners and work collaboratively with them to correct isolated,
minor compliance issues that are detected
– Participation in IMAGE will help companies reduce unauthorized
employment and minimize identity theft
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DHS INITIATIVES IN COMBATING
FRAUDULENT DOCUMENTS
• Working with DOS to implement Western Hemisphere
Travel Initiative
– Limiting number and type of documents accepted
• Border Officer Training
– Focusing on fraudulent document detection
• Biometrics and International Cooperation
– Collecting biometrics via US-VISIT at Ports of Entry
– Requiring VWP countries to report all lost and stolen passports
to Interpol and DHS
• ICE Document Fraud Operations
– 11 Document & Benefit Fraud Task Forces
– Forensic Document Laboratory
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FORM I-9 COMPLIANCE
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WHO CAN WORK IN THE UNITED
STATES?
• U.S. Citizens
• Lawful Permanent Residents
• Nonimmigrants with work authorization from
the USCIS
• Students with work authorization (typically an
“EAD”)
• Others (refugees, asylees, TPS) with work
authorization
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BASIC I-9 REQUIREMENTS
• Complete I-9 for every new hire since
November 6, 1986
• May not hire or continue to employ
someone who is not authorized to work
in the U.S.
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WHO TO I-9
• I-9 employees, not independent contractors
• Do not I-9 employees working outside the
United States or its territories
• All employees in the US, even if on payroll
abroad
• I-9 temporary and part time employees
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CONTRACTORS & TEMPORARY
AGENCIES
• No I-9 form is needed for true independent
contractors
• If you contract with a temporary agency for
personnel, follow the following guidelines:
• Clearly identifying the agency as the “employer”
• Indicate the agency will comply with State and Federal requirements
including, but not limited to, proper I-9 completion and maintenance.
• Include an indemnification clause
• Entering into a contract with “knowledge” of
unlawful status can remove the independent
contractor protection.
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COMPLETING THE I-9
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U.S. Department of Justice
OMB No. 1115-0136
Immigration and Naturalization Service
Employment Eligibility Verification
Please read instructions carefully before completing this form. The instructions must be available during completion of
this form. ANTI-DISCRIMINATION NOTICE. It is illegal to discriminate against work eligible individuals. Employers
CANNOT specify which document(s) they will accept from an employee. The refusal to hire individuals because of a
future expiration date may also constitute illegal discrimination.
Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins
Print Name:
Last
First
Address (Street Name and Number)
City
State
I am aware that federal law provides for
imprisonment and/or fines for false statements or
use of false documents in connection with the
completion of this form.
Middle Initial
Maiden Name
Apt. #
Date of Birth (month/day/year)
Zip Code
Social Security #
I attest, under penalty of perjury, that I am (check one of the following):
A citizen or national of the United States
A Lawful Permanent Resident (Alien # A_____________________
An alien authorized to work until _____ / _____ / _____
(Alien # or Admission # ___________________________________
Employee’s Signature
Date (month/day/year)
Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person
other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that
to the best of my knowledge the information is true and correct.
Preparer’s/Translator’s Signature
Address (Street Name and Number, City, State, Zip Code)
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Print Name
Date (month/day/year)
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TIPS FOR SECTION 1
• Section 1 must be completed by employee on
or before first day of hire
• Ensure that employee checks box, and signs
and dates the form
• If employee checks box 2, A # must be
entered
• If employee checks box 3, expiration date
and A# or I-94 number must be entered
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MOST COMMON ERRORS ON
SECTION 1
1. Name in wrong order
2. Address incomplete
3. Social Security Number
missing
4. Attestation not checked
or incomplete
5. Signature missing
6. Date missing
7. Date of birth instead of
current date
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FORM I-9 SECTION 2
Section 2. Employer Review and Verification. To be completed and signed by employer. Examine on document from List A OR examine
one document from List B and on from List C as listed on the reverse side of this form and record the title, number and expiration date, if any, of the
document(s)
List A
OR
List B
AND
List C
Document title: _________________________
______________________________
___________________________
Issuing authority: ________________________
______________________________
___________________________
Document #: ___________________________
______________________________
___________________________
Expiration Date (if any): ___ / ___ / ___
___ / ___ / ___
___ / ___ / ___
Document #: ___________________________
Expiration Date (if any): ___ / ___ / ___
CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the abovenamed employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the
employee began employment on (month/day/year) ____ / ____ / ____ and that to the best of my knowledge the employee
is eligible to work in the United States. (State employment agencies may omit the date the employee began
employment.)
Signature of Employer or Authorized Representative
Business or Organization Name
Print Name
Address (Street Name and Number, City, State, Zip Code)
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Title
Date (month/day/year)
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REVERSE OF FORM I-9
• The “List of
Acceptable
Documents”
• Update on USCIS
website
www.immigration.gov
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TIPS FOR SECTION 2
• Section 2 must be completed by company
representative within 3 business days of hire
• Verification of IDENTITY and WORK
AUTHORIZATION
• Company representative must review
ORIGINAL documents
• Attach copies of documents presented to the
I-9
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MOST COMMON ERRORS ON
SECTION 2
8. Columns A, B, or C
left blank with copies
attached
9. Document tile
missing
10. Document number
missing
11. Document expiration
date missing
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MOST COMMON ERRORS ON
SECTION 2 (cont.)
12. Column B and C
documents reversed
13. Too many documents
requested
14. Date of hire missing
15. Employer certification
incomplete (preprint)
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FORM I-9 – SECTION 3
Section 3. Updating and Reverification. To be completed and signed by employer.
A. New Name (if applicable)
B. Date of rehire (month/day/year) (if applicable)
C. If employee’s previous grant of work authorization has expired, provide the information below for the document that establishes current employment
eligibility.
Document Title: _________________________ Document #: __________________ Expiration Date (if any): ____ / ____ / ____
I attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee
presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual.
Signature of Employer or Authorized Representative
Date (month/day/year)
Form I-9 (Rev. 11-21-91) N
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WHO MUST BE REVERIFIED?
Never Reverify  US Citizens
Almost Never Reverify  LPR
Almost Always Reverify  Others
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SPECIAL REVERIFICATION
ISSUES
• Lawful Permanent Residents
– Only reverify if I-551 stamp is presented
• Other
– Always reverify by expiration date in Section 1
– Exception: Evidence of asylee status
presented
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SAMPLE I-551 CARD (AKA
“GREEN CARD”)
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SAMPLE I-551 STAMP
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MOST COMMON ERRORS ON
SECTION 3
• Reverification not completed in a timely
manner
• Document provided was not acceptable or
inadequately described
• Over-documentation (do not reverify identity)
• Employer signature or date missing
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TIPS FOR COMPLETING I-9S ON
BEHALF OF TEMPORARY
WORKERS
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HOW TO I-9 AN H-1B
Acceptable List A Documents
 Unexpired Foreign Passport
and
 INS Form I-94 (Form I-94 should have employer’s
name endorsed or Form I-797 with employer’s name
should be examined)
HOW TO I-9 AN H-1B
•Acceptable List B & C Documents
 List B Identity document
and
 Restricted U.S. Social Security Card with
legend stating “valid for work only with INS
authorization” (must also see evidence of work
authorization such as I-94. I-94 must have
employer’s name endorsed or Form I-797 with
employer’s name should be examined)
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H-1B PORTABILITY
An H-1B worker may start working for a new
company while the H-1B change of employer
petition is pending so long as the following criteria
is met:
• Foreign national entered legally
• Foreign national hasn’t worked without authorization
• Non-frivolous petition is filed before I-94 card expires
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HOW TO I-9 A PORTABLE
H-1B
• Acceptable Documents: Same as H-1B visa holder
with the exception that employer must also have:
 Evidence of filing of the change of employer
petition with the CIS and
 Original employer’s Form I-94
HOW TO I-9 AN L-1
Acceptable List A Documents
 Unexpired Foreign Passport
and
 INS Form I-94 (Form I-94 should have employer’s
name endorsed or Form I-797 with employer’s name
should be examined)
HOW TO I-9 AN L-1
•Acceptable List B & C Documents
 List B Identity document
and
 Restricted U.S. Social Security Card with
legend stating “valid for work only with INS
authorization” (must also see evidence of work
authorization such as I-94. I-94 must have
employer’s name endorsed or Form I-797 with
employer’s name should be examined)
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I-94 REFLECTING ADMISSION
TO U.S. AS L-1
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L-2 VISA - SPOUSAL WORK
AUTHORIZATION
• Status tied to spouse’s L-1 employment
authorization
• Employment document is not employer specific
• Must request EAD from CIS
HOW TO I-9 AN L-2 SPOUSE
Acceptable List A Documents
 Unexpired Employment Authorization Card
SAMPLE EMPLOYMENT
AUTHORIZATION CARD
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F-1 VISA – OPTIONAL PRACTICAL
TRAINING
• Students can engage in “optional practical
training”, pre- or post-graduation, for a total
of 12 months; part-time during school year,
full-time during vacations
• Not employer specific
• Acceptable List A Document
 Unexpired Employment Authorization
Document (I-688B or I-766)
F-1 VISA – CURRICULAR PRACTICAL
TRAINING
• “Curricular” practical training allowed if part of educational program or
for off-campus employment based on unforeseen extreme economic
hardship
• Acceptable List A Documents
 Form I-688B or Form I-766
• Acceptable List B & List C Documents
 List B identity document in conjunction with an endorsed Form I-20
indicated employment authorization and Form I-94 reflecting that
student was admitted to the US in F-1 status for duration of status
(D/S)
I-94 EVIDENCING ADMITTANCE OF
STUDENT IN F-1FOR DURATION OF
STATUS
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I-120 ID
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ENDORSEMENT ON BACK OF I-20
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RECEIPT RULE:
• Employee must already have work
authorization
• May only accept receipt for replacement
document that was lost, stolen, or damaged
• May not accept receipt for extension of EAD
• Must see an original document within 90
days of hire (docket this date)
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AUTHORIZING AN AGENT
TO COMPLETE AN I-9
• An employer may delegate the authority to
complete an I-9
• The employer retains the liability for errors
• Select someone responsible
• Provide written guidance and contact
information
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REHIRING
• No I-9 needed if employee is “continuing to be
employed”
• Leave of absence, disability, vacation, etc
• Promotion or demotion
• Strike, temporarily laid off
• Disciplinary suspension
• Transfer between one distinct unit of employer to
another
• I-9s may be reused if completed within 3 years of
date of rehire (new I-9 recommended)
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I-9 PENALTIES--FINES
• Civil Money Penalties: $110 - $1,100 per
I-9 for mistakes or omissions
• Penalty: $275 - $11,000 for knowing hire
or continuing to employ
• (10% less for errors that occurred before
September 29, 1999)
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KNOWLEDGE
• Actual knowledge includes knowledge of
supervisors at company
• Constructive knowledge includes
circumstances where the company “should
have known”
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I-9 PENALTIES--FINES
• Liability for employers’ technical or procedural
paperwork errors limited
– If the employer makes a good faith effort to
comply with the I-9 verification requirements, no
fines for mere technical or procedural errors
• Does not apply if errors not corrected within 10
business days from the date INS notifies of errors
• Does not apply if pattern and practice found
– Applies to errors made after September 30, 1996
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TIPS FOR CORRECTING I-9s
• All corrections should be initialed and dated
with date of correction
• Do not use white-out
• Do not obliterate information
• Sample
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Date
corrected
by
employee
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I-9 PENALTIES--CRIMINAL
• $3,000 per unauthorized alien and up to six
months in jail for pattern and practice of
employing unauthorized workers
• Five years imprisonment for person who,
during any 12-month period, knowingly hires
at least 10 individuals with actual knowledge
that the individuals are unlawful workers
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OTHER PENALTIES
• Criminal liability for document fraud
• Debarment from government contracts
for “knowingly” employing an
unauthorized worker
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DISCRIMINATION ISSUES
AND
RECRUITING LANGUAGE
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BASIC I-9 DISCRIMINATION
VIOLATIONS
• Document Abuse
• Citizenship Status Discrimination
(distinguished from National Origin
Discrimination)
• Retaliation
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DOCUMENT ABUSE
• May not ask for more or different documents
• May not refuse to accept valid documents
presented
• Should not specify which documents will be
acceptable
• Penalty: $110 - $1,100
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CITIZENSHIP STATUS
DISCRIMINATION
• May not treat persons in the "PROTECTED
CLASS" differently for purposes of hiring or
firing.
• Penalty: $2,000, $5,000, $10,000
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“PROTECTED CLASS” INCLUDES
•
•
•
•
•
U.S. Citizens or Nationals
Permanent Residents
Refugees
Asylees
Temporary Residents under the legalization
program (Special Agricultural Worker or
amnesty applicant)
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I-9 "PROTECTED CLASS" DOES
NOT INCLUDE:
• Non-Immigrants Such As:
- F-1
- J-1
- H-1
• Asylum Applicants
• Illegal Aliens
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RECRUITING ISSUES
• How do I identify who needs a visa?
• What questions can I ask?
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OFFER GUIDELINES
• Do not discriminate against members of
“protected class”
• Do not treat members of “protected class”
differently from one another
• Use written questionnaire rather than
verbal questions
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WHAT TO ASK: SAMPLE FORMAT
#1
• Are you legally authorized to work in the
United States?
yes ____
no _____
• Will you now or in the future require
sponsorship for employment visa status
(e.g., H-1B visa status?)
yes ____
no _____
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WHAT TO ASK: SAMPLE FORMAT
#2
• Are you one of the following:
• Citizen or National of the United States,
• Lawful Permanent Resident,
• Refugee,
• Asylee, or
• Temporary Resident (does not include nonimmigrant visas such as F-1, J-1, H-1,etc.)
yes____
no____
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NO DISCRIMINATION IF:
• Request for additional documents not
made with the intent to discriminate
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NO DISCRIMINATION IF
REQUIRED BY:
•
•
•
•
•
Law
Regulation
Executive Order
Government Contract
As Determined By Attorney General
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ESTABLISH AN I-9 COMPLIANCE
SYSTEM
•
•
•
•
•
Assess I-9 liability
Assess current I-9 procedures
Conduct I-9 training
Correct I-9s
Update I-9 procedures
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ISSUES FOR I-9 POLICY
•
•
•
•
•
•
•
What questions to ask in recruitment
When to complete I-9
Whether to photocopy documents
How to reverify I-9s
How to store and maintain I-9s
Moving I-9s to separate file upon termination
How to transfer I-9s when employee transfers
within company
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THANK YOU
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