Curtis ChowAssociate Attorney

U.S. Immigration Law & Compliance

TODAY’S PRESENTERS

Jared CarlsonSenior Product Engineer

Purpose of the Form I-9

▪ Unlawful for an employer to hire or continue to employ an individual who the employer knows is unauthorized to work in the United States

▪ The Form I-9 required for employers to:

• Verify the employee's identity

• Verify the employee's work authorization

• Record the information using Form I-9

• Published by U.S. Citizenship and Immigration Services (USCIS)• Compliance is enforced by U.S. Immigration and Customs Enforcement (ICE)

New I-9 Form

On July 17, 2017, USCIS issued a new version of Form I-9

• Old version (dated 11/14/16 N) is acceptable through September 17, 2017

• New version is mandatory on and after September 18, 2017.

• On and after this date, the only acceptable version of Form I-9 is the form with revision date “07/17/17N” on the bottom left corner of the form.

Changes in New I-9 Form

The new Form I-9 does not feature significant changes

• Changes to Instructions– References to the Justice Department’s “Office of Special Counsel for

Immigration-Related Unfair Employment Practices” have been changed to the new name of “Immigrant and Employee Rights Section.”

– USCIS removed the phrase “the end of” from the phrase “first day of employment” with respect to when Section 1 must be completed.

• Changes to List of Acceptable Documents– USCIS added the Consular Report of Birth Abroad to List C (Form FS-240). Form

FS-240 is now available in the drop-down menus in List C of Sections 2 and 3.– USCIS combined all certifications of birth issued by the U.S. Department of State

into selection C#2.– USCIS renumbered all List C documents except the Social Security card.

Other Changes Related to I-9 Form

While not changes to the Form I-9 itself:

• Changes to M-274– The USCIS Handbook for Employers: Guidance for Completing Form I-9 (M-274) has also been

revised to reflect the changes to the I-9 form.– M-274 has been revised from a PDF format to an online link-driven format.

• Potential further revisions to Form I-9– Final rule upcoming on parole of entrepreneurs (scheduled to become effective March 2018).– Should the rule become effective, USCIS has stated there may be corresponding I-9 changes.– More recently, USCIS indicated it intends to eliminate the rule.– TAKEAWAY: Potentially a new I-9 form in 2018; however, this is looking increasingly unlikely.

Poll Question #1

How confident are you that your managers are correctly completing the

I-9 every time?

Recent Trends in Compliance

Enforcement Continues to Trend Upwards

(in millions)

I-9 Penalties (Final Orders) Issued FY2008 - FY2016

Recent Trends in Compliance

More Perspective:

• Average Fine per Final Order in 2011: $25,974• Average Fine per Final Order in 2012: $24,242• Average Fine per Final Order in 2013: $23,547• Average Fine per Final Order in 2014: $25,078• Average Fine per Final Order in 2015: $33,464• Average Fine per Final Order in 2016: $50,445

Trump issued Executive Order January 25, 2017, to take all appropriate action to hire 10,000 new ICE officers.

Recent Trends in Compliance

Some Trump Enforcement Era Insights

• Some commentators expect an increase in worksite raids targeting the removal of unauthorized workers.

• While still premature to tell what the Trump worksite enforcement strategy will be, I-9 compliance will likely continue to be a focus:

– I-9 penalties represent a source of funding for ICE enforcement activities.– 2018 DHS budget calls for $131.5 million for expanding E-Verify in order to support mandatory

use of E-Verify nationwide. Since Form I-9 is a necessary part of the E-Verify program, a focus on I-9 compliance is not likely to go away.

– Form I-9 violations often serve as an important key basis to pursue prosecutions.

Illustrative Case in Point

A Human Resources Manager was charged in a 25-count indictment with conspiracy and I-9 fraud, including 24 counts of falsely attesting to the validity of employment-related documents. A key component of the charge was that he committed fraud by falsely certifying on Form I-9 that he had examined the documents listed on the Form I-9 and determined them to be genuine and that, to the best of his knowledge, the applicant was eligible to work in the United States.

The company in this instance was also subjected to penalties ($2.5 million).

Types of I-9 Violations

There are three main types of employer I-9 violations:

• Knowingly hiring or continuing to employ unauthorized aliens

• Paperwork errors

• I-9 Discrimination: Citizenship-status discrimination, national origin discrimination, and "document abuse"

“Knowingly” Hiring or Continuing to Employ Unauthorized Alien

"Knowingly" includes:

(1) Actual knowledge that an employee lacks work authorization; and

(2) Constructive knowledge, i.e., knowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a reasonable person to know that an employee lacks work authorization.

Examples of "Constructive" Knowledge

• The company does not complete an I-9 form and the employee turns out to be unauthorized to work.

• The employee does not properly complete Section 1 of the form (e.g., fails to check an attestation box).

• The employee's temporary work permit expired, but the company continues to employ the person without I-9 re-verification.

• The company fails to address/resolve mismatch notices received from the SSA or the DHS.

I-9 Paperwork Violations

• The I-9 form is a technical form–"almost" right can still subject you and the company to penalties.

• The keys to proper I-9 compliance:– Know the I-9 rules– Be thorough–make sure all required sections are completed, and avoid taking

shortcuts– BUT–do not be overzealous–verify only what is required, and no more– Be consistent

• Remember–the I-9 form is signed under penalty of perjury

Anti-Discrimination Requirements

I-9 Discrimination is enforced by the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER)• Premise of anti-discrimination provisions is to prevent employers from being

“over-zealous” in its I-9 compliance efforts.• Prohibits citizenship status, national origin, and “document abuse” discrimination.• IER is pursuing more "pattern or practice violation" cases• Can become expensive and document intensive litigation• IER and DHS entered into data sharing agreement• DHS will provide E-Verify data to IER• IER may use data to identify violations of the anti-discrimination provisions

Citizenship/Immigration Status Discrimination

Examples:

– Refuse to hire a foreigner because EAD has future expiration date– Prefer to hire H-1B visa holders or other temporary workers– Different hiring procedures for U.S. citizens versus foreigners/immigrants.– Language in recruitment ads suggesting preference for U.S. citizens– Refusing to accept an acceptable document for I-9 purposes which appears

genuine on its face and reasonably relates to the individual presenting it.– Specifying that an individual must provide a specific document for I-9 purposes.– Re-verifying U.S. Citizens or Permanent Residents on Form I-9 (other than rehire

situations).– Require immigrants, or those who appear foreign, to show specific work permit

documents, but allow U.S. citizens to provide I-9 documentation of their choosing.

Recent Developments in Compliance

“Clarification” of “Discriminatory Intent”:

• DOJ Passed a Final Rule effective January 18, 2017, which seeks to incorporate definition of “discriminatory intent” into regulations

• History:– I-9 Discrimination under IRCA (1986) was a strict liability offense.– IIRIRA (1996) revised IRCA to include an intent requirement specifying violation is

only if done “for the purpose or with the intent of discriminating against an individual.”

– Regulations lagged behind the statute–and new Final Rule is intended to “catch up” the language of the regulations to match the intent requirement of the statute.

– As a practical matter, DOJ continued to take a “strict liability” stance in enforcement.

Recent Developments in Compliance

“Clarification” of “Discriminatory Intent”:

• Regulations now specify that an employer’s actions are not an unfair immigration-related practice unless the action is taken with the intent of treating individuals differently because of national origin or citizenship status

• HOWEVER: Such discriminatory intent may exist “regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.”

• TAKEAWAY: The standard to constitute “discriminatory intent” is so low, that it is de facto a strict liability offense.

Poll Question #2

Is your company currently using an

automated I-9 tool?

I-9 Compliance Best Practices

1. Avoid a fishing expedition: Consider removing all I-9 records from personnel files and keeping them organized in a separate I-9 binder either at the work site or at a central corporate office. Should ICE visit the office requesting the I-9 records, the documents will be accessible and organized.

2. Appoint an I-9 captain: Consider designating a lead human resources professional to oversee the I-9 process. Ensure that this person receives annual training on the I-9 requirements.

3. Watch for timeliness: Failing to complete the Form I-9 on a timely basis is a substantive violation, which can lead to substantial fines. An employee must complete Section 1 on or before his or her first day of work, and the employer must complete Section 2 no later than the employee’s third day of employment. If a company has a seven-day operation, weekends count towards these days of employment.

4. Be there in person: Make sure all I-9 documents are verified in person to ensure the documents appear legitimate and reasonably relate to the employee being verified. Do not accept faxed or scanned documents for I-9 purposes.

5. Never ask for specific documents: Allow the employee to select the I-9 documents he or she wishes to present. Employers may want to avoid saying things like “please show me your green card” or “I need to see your Social Security card.” Instead, allow the employee to choose from the list of acceptable documents.

I-9 Compliance Best Practices

6. Be consistent: This includes consistently keeping or not keeping copies of supporting documents for I-9 purposes, as well as subjecting all employees to the same I-9 procedures and rules. What a company does for one, it may do for all—regardless of the employee’s citizenship status.

7. Create an I-9 tickler system: If an employee indicates that he or she has work authorization that will expire, consider establishing an automated tickler system as a reminder to reverify his or her employment eligibility before it expires. An employer may also want to utilize an online I-9 system, if possible, to alleviate missed deadlines.

8. Do not over-document: Accepting and/or photocopying too many supporting documents may lead to a fine. If an employee provides too many documents, an employer may need to push back by showing him or her the list of acceptable documents and allowing him or her to choose which documents to use for I-9 purposes.

9. Perform an I-9 checkup now: Taking steps to ensure an effective, compliant I-9 program will not only alleviate unnecessary liability, but it will also go a long way in establishing a good faith defense in the face of an ICE audit, which can further reduce civil fines. To conduct a checkup, an employer can ask its HR team how they conduct the I-9 process and review their responses to tighten up where necessary. Next, the employer could perform an internal audit of its I-9s and clean up any technical violations. Finally, it can train its HR team on I-9 issues and continue to review its processes on an annual basis.

10. Train, train, train: Employees with I-9 responsibilities should undergo regular training to ensure they are well versed in proper completion of the Form I-9, how to avoid noncompliance and discrimination risks, and to keep abreast of latest I-9 updates.

I-9 Demo

Q&A

Activity ID: 325963Credit Hours Awarded: 1 (HR General)

Activity ID: 17-RRHF5Professional Development Credits (PDCs): 1

SAVE THE DATE

2017 State of the Hourly Worker Survey Results

Wednesday, September 20 at 1 p.m. ET

Thank you!