I-9 Training

Report
-9
Update:
What does Sonny Bono have to do with Immigration Law?
Gabriella Manolache, J.D.
Managing Director, International Employment Services
January 23, 2012
WHY IS THIS IMPORTANT?
Abercrombie & Fitch fined $1M+ After I-9 Audit (9/2010)
ICE Announces New I-9 Audits of More Than 500 Companies (9/2010)
July 07, 2009 Feds Launch I-9 Audits at Hundreds of Employers
Immigration Audits Increasing Against Employers: sixty-six probes
done on local work places in fiscal 2010, up from just one in 2008
(10/10)
Subway restaurant to pay $27,000 fine-down from initial fine of
$111,078 for 108 distinct I-9 violations (2/2011)
As of September 17, 2011, ICE instituted 3,015 administrative/criminal
investigations—a 54% increase over the FY2008 numbers. In FY2010,
ICE arrested and criminally prosecuted 196 owners, HR managers, and
executives—a 45% increase over FY2008. (10/13/2011 ICE Director John
Morton’s congressional testimony)
AGENDA
 I-9 History
 Completing the I-9
 Correcting the I-9
 Reverification
WHAT DOES SONNY BONO HAVE TO DO WITH I-9
COMPLIANCE?
BACKGROUND
 1986 Passage of the Immigration Reform and Control Act (IRCA): I-9 for
Each Employee Hired After 11/6/1986
 But…the first worksite enforcement-related cases for I-9 errors lacked clear
standards to assess penalties, so…

1991 INS issued a memo with a penalty formula but indicated that INS
could refuse to adhere to its own formula
 IIRAIRA 1996: Congress amended the law to allow a good faith defense
for technical/procedural errors (sponsored by Congressman Sonny Bono
after he experienced repeated verification issues in his own restaurant)
 So…what is a technical/procedural error v. substantive error?
RESULT: SUBSTANTIVE V. PROCEDURAL VIOLATION IS
STILL UNDEFINED
LOOK AT FACTS-NOT FACES
I-9 COMPLIANCE PRACTICE POINTERS
Complete Form I-9 for Each Employee

Not Independent Contractors, Casual Domestic Workers in Private Home, Workers
Employed by Temp/Leasing Agency, Someone Not Physically Working on U.S. Soil

Section 1: Completed by Employee On First Day of Work (latest)
• …although Employer is liable for any defects in Section 1
• Employer is obligated to ensure employee correctly completes Section 1


• ICE has determined that leaving an area blank in Section 1 is tantamount to an employee
refusing to attest to having work authorization (can leave SS number off unless being Everified)
Section 2: Completed by Employer Within 3 Business Days of Hire
Do NOT ask for specific documents (i.e., Green Cards, work cards only)
• Do NOT verify some employees’ documents and not others
• Do NOT copy documents of only certain nationalities to the exclusion of others
• DO note the title of the document, identification #, issuing authority and expiration date
of all docs you receive. Abbreviations (SS, DL) are now fine.

• Decide whether to copy documents-unless handling an E-verify case
Documents should ‘reasonably’ appear to be genuine
FORM I-9 SECTION 1: EMPLOYEE
SECTION 1: COMMON MISTAKES
 No Boxes Checked
 No Alien #/Admission # Next to Box 3-4
 No Expiration Date Recorded in Box 4
 Lack of Employee Signature
 Employee Forgot to Date Section 1
FORM I-9: SECTION 2
SECTION 2: COMMON MISTAKES
 Listing too many documents
 Not listing the document’s title, issuing authority, document number and
expiration date
 Not listing the date the employee began work
 Not signing/dating Section 2
SECTION 2: PROCEDURES FOR COMPLETION
 Ask Employee to Provide Documents Establishing Both Identity and Work
Authorization (only documents in List A establish both)
 Employee Can Provide 1 Item from List A; or
 Employee Can Provide 1 Item from List B and 1 Item from List C
CURRENT LIST OF ACCEPTABLE I-9 DOCUMENTS FOR
SECTION 2
THINK OF THE FAIR!
Visa stamp=gate pass from
consulate
•Extension of
stay=someone who has
not used up all their
tickets (I-94 card) can ask
for more tickets
•Change of
status=approval to ride
different rides
I-94 card=ticket that
allows certain
activities
Permanent Residency=lifetime ticket
to the fair-bought by someone else
(sponsor). Can be
revoked/abandoned
Passport=real lifetime
ticket for holder and family
members
•Violation of status=riding the
wrong rides
•Overstaying status=staying in the
park after I-94 card expires (tickets
are up)
•Deportability=violating fair
ground’s rules
EXAMPLES OF LIST A DOCUMENTS: ALL MUST BE
UNEXPIRED
Old-style Green Card
U.S. Passport Card
U.S. Passport
Permanent Resident (Green Card) May 2010: Newly
Re-designed Green Cards:
Now they are actually green!
A foreign passport with an I-551
(Green Card) stamp
Temporary I-551 notation
on a machine-readable
visa stamp
LIST A DOCUMENT SAMPLE CONT’D: ALL MUST BE
UNEXPIRED
Brand new EAD card as of 10/25/11
+
Brand new EAD
card as of 2/11/11may contain a
statement of travel
authorization
Passport from Micronesia or the
Marshall Islands + an I-94 card
reading “CFA/MIS” for an RMI citizen,
and “CFA/FSM” for an FSM citizen.
+
+
OR
I-94 card, plus foreign passport bearing the same name as I-94, plus EITHER a Form I-20 or Form
DS-2019
CAUTION!

F-1 (students) and J-1 (exchange visitors) holders will not have an
expiration date listed on their I-94 card

Instead, their I-94 cards will read “D/S” for Duration of Status

Therefore, look at the person’s DS-2019 or I-20 to get the expiration date
OTHER ACCEPTABLE DOCUMENTS: NONIMMIGRANT
EXTENSIONS
+
+
Foreign Passport
I-797C Receipt Notice
The receipt date indicates that the extension was filed timely. Write
“240 Day Ext.” in the margin of Form I-9 next to Section 2, along with
the receipt date
Expiring I-94 card indicating
nonimmigrant status
•Nonimmigrant employee (already working with
employer) whose current status is expiring but
who filed a timely extension application (H-1B, L1, O-1, TN)
•For expiration date, he/she is authorized to
continue working with TTUHSC until date of
USCIS’s decision, but no later than 240 days
from the date of the I-94 card’s expiration (**the
I-94 card must reflect the same status for which
an extension was just filed).
•So…update the I-9 when the receipt notice
arrives in the office BEFORE the employee’s
current status expires. Be sure to update Section
3 after the approval notice arrives.
OTHER ACCEPTABLE LIST A DOCUMENTS: H-1B TRANSFER
(PORTING)
+
+
Foreign Passport
The receipt date
Current I-94 card indicating H-1B
status (from the previous employer)
•Situation where an H-1B employee is transferring to a new employer
from a prior employer (most common fact pattern)
•For start date of employment, use the “receipt date” or later
•For expiration, he/she is authorized to work with new employer until
date of USCIS’s decision. For our purposes, no later than 240 days
from the date of the I-797C receipt notice. Be sure to update Section 3
when the approval notice arrives!
•Write “AC-21” in the margin of Form I-9 next to Section 2 and include
the receipt date of your organization’s application
•CAVEAT: Under INA 214(n)(2), H-1B portability is extended to any
nonimmigrant that previously held H-1B status (ex: H-1B to H-4 to
H-1B). Be very careful with Portability, as E-Verify and USCIS
guidance suggests that only foreign nationals who are currently
in H-1B status or have a pending H-1B can qualify for portability
(clearly contrary to the plain meaning of the statute).
I-797C Receipt Notice
OTHER ACCEPTABLE LIST A DOCUMENTS: FROM I-9 CHART
LIST A(5)
+
I-94 card bearing work-authorized
nonimmigrant status (refer to page
34 in old I-9 handbook for a list of
classifications that authorize work,
like E-3, H-1B, J-1, L-1, TN, O-1)
Foreign passport
•I-797B is issued to those who have never been to the USA or to
those whose change of status cannot be approved. This means you
are qualified for the job but that a change of status cannot be approved
to stay and work in the USA for two reasons:
1. you are NOT in the USA currently; or
2. you may have committed an immigration violation. Documents
submitted during filing do not provide enough evidence that you were
legally employed at all times, or had never been out of status, etc.
Hence, such applicants if in the U.S. must leave and apply for a visa at
a U.S. consulate. The officer will determine if the applicant is eligible
for re-entry based on evidence provided at the consular interview.
Expiration
date: listed on
I-94 card
May or may not be accompanied
by a nonimmigrant Approval
Notice (I-797B)
I-94 portion is missing
OTHER ACCEPTABLE LIST A DOCUMENTS: TEMPORARY
PROTECTED STATUS (TPS)
+
EAD card (I-765) that is expired on its face,
but….
Designated Most Recent
Country
Designation Date
Current Expiration
Date
Current ReEAD Automatically
Registration Period Extended Through
El
Salvador
March 9, 2001
September 9, 2013
January 9, 2012 –
March 12, 2012
September 9, 2012
Haiti
July 23, 2011
January 22, 2013
May 23, 2011August 22, 2011
January 22, 2012
Honduras
January 5, 1999
July 5, 2013
November 4, 2011July 5, 2012
January 5, 2012
Nicaragua January 5, 1999
July 5, 2013
November 4, 2011July 5, 2012
January 5, 2012
Somalia
September 4, 2001
September 17, 2012
No Automatic
November 2, 2010- Extension-sufficient
January 3, 2011
time given to
extend
Sudan
October 7, 2004
May 2, 2013
October 13, 2011April 10, 2012
Sometimes DHS must issue a blanket automatic extension of the
expiring EADs for TPS beneficiaries of a specific country in order to
allow time for EADs with new validity dates to be issued. The Federal
Register will tell you if your EAD has been temporarily auto-extended
and to what date.
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac892
43c6a7543f6d1a/?vgnextoid=848f7f2ef0745210VgnVCM100000082ca
60aRCRD&vgnextchannel=848f7f2ef0745210VgnVCM100000082ca6
0aRCRD
May 2, 2012
Extension date
LIST B: WHO ARE YOU?
WHO ARE YOU? LIST B SAMPLE DOCUMENTS: ALL
DOCUMENTS MUST BE UNEXPIRED
A state-issued ID card
Driver’s license issued by a
Canadian government authority
Any state driver’s license
Other Acceptable Documents:
•School ID with Photo
•U.S. Military Card or draft record
•Military dependent’s ID card
•U.S. Coast Card Merchant Mariner Card
•Native American Tribal Document
Voter Registration Card
NOTE: Do not accept a List B document unless it contains a photo of the person whom you will be running
through E-Verify
LIST C: ARE YOU AUTHORIZED TO WORK?
DO YOU HAVE WORK AUTHORIZATION? LIST C SAMPLE
DOCUMENTS: ALL MUST BE UNEXPIRED
Social Security Card-UNLESS it
specifies on its face that it does
not authorize employment in the
U.S.
Certificate of Birth Abroad issued by
the State Department: Document FS545
Original or Certified Copy of a
birth certificate issued by state,
county, municipal authority or
outlying possession of the U.S.
U.S. Citizen ID Document I-197
(no longer issued but still valid)
Certification of Report of Birth
issued by the State Dept.
Document DS-1350
•Native American Tribal document
LIST C DOCUMENT SAMPLE CONT’D: ALL MUST BE
UNEXPIRED
+
ID Card for use of Resident Citizen
in the U.S. Document I-179
Form I-20 endorsed for CPT or offcampus employment, plus an I-94 card
(foreign students have F-1 status)
+
Form DS-2019 plus an I-94 card
reflecting J-1 status
I-94 card with an asylee approval stamp reading “Asylum”
or “Granted Indefinitely” or “274a.12(a)(5) or INA 208. This
document does not expire!
LIST C DOCUMENT SAMPLE CONT’D: ALL MUST BE
UNEXPIRED…WITH ONE EXCEPTION
Approved for the
sponsoring
organization
Expiration Date
+
+
I-797A
Approval Notice
•Employment Authorization document
issued by Dept.of Homeland Security
(other than that listed in List A)
An expired 2-year Permanent Resident card (I-551) with Form I-797C
Receipt Notice indicating that the card has been extended for 1 year. New
I-9 Expiration Date: 1 year past expired card
THE RECEIPT RULE
I can’t provide any ID documents
within 3 business days of my
employment! What now?
•There are 3 types of acceptable
receipts (RECEIPT RULE):
Does not include the
word “expired.”
CORRECTING I-9 ERRORS

If error is noticed immediately, shred initial I-9 and start over with new I-9
 If error occurred in the past, take the following steps: NEVER ERASE OR USE WHITE-OUT
 Section 1 error: any correction must be completed by the employee. Wrong information contained in
Form I-9 must be crossed out and filled in correctly using a different color ink pen than originally
used. Areas which are blank must be filled in by the employee using a different color ink pen than
originally used. All changes must be dated and initialed by the employee.
 Section 2 error: any correction must be completed by HR. Wrong information contained in Form I-9
must be crossed out and filled in correctly using a different color ink pen than originally used. Areas
which are blank must be filled in by HR using a different color ink pen than originally used. All
changes must be dated and initialed by the HR rep.
REVERIFICATION: SOMEONE’S STATUS IS ABOUT TO
EXPIRE-NOW WHAT?

Personal Responsibility

Expiration Notification

Status must be re-verified no later than the date that the employee’s current
status expires

Follow the same steps with re-verification as with initial I-9

Do not re-verify an expired U.S. Passport, passport card, 10-year
Permanent Resident Card or a List B document that has expired
 Section 3 of Form I-9: Filled out by the employer’s representative
SECTION 3: REVERIFICATION AND REHIRING
 Reverification: Employer completes Section 3 or if Section 3 is already full, print new I-9 and write the
Employee’s name in Section 1 before proceeding to Section 3. Attach the old I-9 to the new I-9.
 Rehiring: Employer completes Section 3 or if Section 3 is already full, use a new I-9 if:
•Employee is being rehired within 3 years of their initial date of hire; and
•The employee’s previous grant of employment has expired, but he/she can now work under a new
grant of employment.
•No need to complete Section 3 or a new Form I-9 if employee is being rehired within 3 years and the
old I-9 indicates that the employee is still eligible to work on the same basis as when the original I-9
was completed. Instead, just update Section 3 of the old I-9 with the new rehire date.
***Caveat: A new I-9 must be completed if the previously completed I-9 is an older version of
the form.
WHAT HAPPENS IF I DON’T GET IT RIGHT?
A LITTLE HUMOR
YES!!!!!!!!!!
Justice Department’s Office of Special Counsel Pursues Discrimination
Claims Based on National Origin or Immigration Status
Justice Department Settles with University of California San Diego Medical Center (Jan. 4, 2012)
WASHINGTON – The Justice Department today reached agreement with the University of California San Diego Medical
Center, resolving a complaint filed on Dec. 6, 2011, alleging that the medical center failed to comply with proper
employment eligibility verification processes.
DON’T:
Demand specific documents:
In May 2011, OSC reached a settlement that provided for $45,760 in civil penalties from an employer that had a policy of requiring
newly‐hired non‐U.S. citizen workers to produce specific government‐issued documentation before they were permitted to
begin work, while U.S. citizen new hires were permitted to present their choice of documents to satisfy the Form I‐9 process
and to begin employment.
Ask certain workers for more documents than necessary to complete Form I-9:
In October 2010, OSC reached a settlement with an employer that provided for $257,000 in civil penalties after finding the
employer engaged in a pattern and practice of requiring naturalized U.S. citizen workers and non‐U.S. citizen workers to
produce more documents than required by law for the Form I‐9 process.
Reject valid work authorization documents from non-U.S. citizens but accept the same documents from U.S. citizens:
In June 2010, OSC reached a settlement providing for $8,586 in back pay to two non‐U.S. citizen workers and $2,200 in civil
penalties after finding the employer rejected their unrestricted Social Security cards and demanded to see additional
documents to prove their work eligibility, but routinely accepted Social Security cards presented by U.S. citizen workers.
Demand that Lawful Permanent Residents present new Green Cards when theirs expire but do not ask U.S. citizens to produce new
documents when theirs expire:
In November 2010, OSC reached a settlement including $10,200 in civil penalties against an employer that had a pattern and
practice of requiring all lawful permanent resident workers who presented green cards for the Form I‐9 to present renewed
green cards when their cards expired, but did not require U.S. citizen workers to present renewed documents when their
documents expired.
NOT SO FUNNY: MONETARY PENALTY TABLE
Substantive / Uncorrected Technical Violation Fine Schedule: Standard Fine
Amount: (0% - 9%) $110, $550, $1,100; (10% - 19%) $275, $650,
$1,100; (20% - 29%) $440, $750, $1,100; (30% - 39%) $605, $850,
$1,100; (40% - 49%) $770, $950, $1,100; (50% or more) $935, $1,100,
$1,100.
Enhancement Matrix Aggravating/Mitigating Factors: Business size; Good
faith; Seriousness; Unauthorized Aliens; History. +5% for Aggravating, 5% Mitigating
IN CLOSING…

Become familiar with M-274 Handbook for Employers, located at
http://www.uscis.gov/files/form/m-274.pdf (revised 06/01/2011)

Visit I-9 Central located at http://www.uscis.gov/I-9Central

Use current version of Form I-9 (Exp. date of 8/31/2012). Look for the
“Y”

PowerPoint presentation is not meant to cover every possible I-9 Scenario

similar documents