immigration law update: what you need to know now to comply – from i-9s and e-verify to no-match...

Immigration Law Update:What You Need To Know Now To Comply –From I-9s and E-Verify to No-Match Letters

Thursday, October 6, 2011Presented by the Employer Resource Institute

with John Nahajzer and Monique A. van Stiphout

© 2011 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission.

The Immigration Reform andControl Act of 1986 (IRCA)

Copyright 2011 BLR Inc.

The Immigration Reform and Control Act of 1986 (IRCA) bars employers from hiring individuals, including illegal aliens, who are not legally entitled to work in the United States.

Employers must verify that individuals are eligible to work by obtaining an Employment Eligibility Verification Form, known as Form I-9, and inspecting the required supporting documents at the time of hiring. I-9 forms must be retained for 3 years after the worker is hired or for 1 year after termination, whichever is longer. IRCA prohibits employers from discriminating in hiring, firing, recruiting, or referring on the basis of national origin or citizenship status. It is also illegal to retaliate against an employee who has filed a discrimination charge.

The Immigration andNaturalization Act (INA)


The Immigration and Naturalization Act (INA), as amended by IRCA and all subsequent amendments, prohibits employers from hiring illegal aliens. IRCA applies to all employers, including those that hire domestic help or farm laborers.

Employers are required to verify that all employees hired after November 6, 1986, are legally entitled to work in the United States.

The law also makes it illegal to discriminate in hiring and firing based on citizenship status or national origin.

State Immigration Laws


IRCA provisions "preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens" (8 USC Sec. 1324a(h)(2)). There is a preemption exception for state licensing and similar laws, but according to the legislative history of IRCA, the exemption applies only to laws where a license can be revoked if an employer has violated IRCA.

Thus, a federal district court has ruled that a local city ordinance barring the employment of unauthorized aliens by businesses in the city was preempted by IRCA even though the penalty for violating the local law was revoking the employer's license to operate a business in the city (Lozano et al. v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. PA. 2007). However, the 9th Circuit Court of Appeals has ruled that the Arizona law whose primary sanctions for employing unauthorized aliens was suspension and revocation of business licenses was not preempted by IRCA (Chicanos Por La Causa, Inc. v. Candelaria, No. 07-17272 CA-9, 9/17/2008)).

State Immigration Laws


A number of state and local governments have passed provisions intended to outlaw or discourage the employment of illegal aliens in their jurisdictions. Although IRCA's preemption provision is broadly worded and likely supersedes many local attempts to regulate the hiring of undocumented individuals, statutes that impose sanctions through suspension and revocation of business licenses have been upheld.

It is likely, however, that state laws aimed at regulating immigration will continue to be challenged in court by organizations that advocate for immigrants. At least one locality has already reversed direction and voted to take a local ban on hiring undocumented workers off the books because of the cost of enforcing the law, including defending it in court.

What Are No Match Letters?

Social Security no-match letters are written notices issued by the Social Security Administration (SSA) to employers alerting them that the name or Social Security number (SSN) reported by the employer (typically on employee wage reports such as W-2s) for one or more workers does not match the name or SSN shown in SSA's databases. (SSA has its own name for no-match letters: "decentralized correspondence (DECOR) notices.")

The SSA tries to correct errors in its databases continuously, particularly so that workers' earnings will be credited properly for future SSA benefits. SSA officials say these no-match letters are typically sent to employers whose wage reports show mismatches on more than 10 percent of their W-2 forms, and employers that routinely have significant numbers of immigrants in their workforces are especially prone to receiving these letters (though of course they may be issued by SSA to any employers showing even a single mismatch).


What Are No Match Letters?

The letters say that they're simply alerting employers to apparent discrepancies in either the employers' or SSA's records and that employers do not have to respond to the letters. SSA also says it doesn't track responses to its no match letters. However, if you fail to talk with your employees who've been identified in no match letters about correcting the discrepancies, there is the chance that the SSA could refer the issue to the Internal Revenue Service or the U.S. Justice Department for potential Social Security fraud. The bigger worry is that, if you continue employing individuals who don't fix mismatches with SSA, you risk employing workers who are not legally authorized to work in the United States. Also, Immigration and Customs Enforcement (ICE) officials routinely request copies of SSA no match letters during I-9 audits.

(Additional background: SSA stopped sending no match letters to employers in 2007 due to lawsuits challenging a proposed regulation by the U.S. Department of Homeland Security (DHS) that tried to create a "safe harbor" for employers following the no match procedures in good faith. The DHS took back the proposal in 2009, and in the spring of 2011, SSA resumed sending out no match letters to employers.)


What Triggers Them?

"Mismatches" can result from many different causes:

Typographical/input errors committed by employers and employees on wage reports such as W-2 (e.g., transposed letters in a name) or even by SSA staffers reviewing the wage reports

Unreported name changes due to marriage, divorce, or naturalization

Identity theft

Errors in reporting proper culturally based hyphenated or multiple surnames

Fraud (e.g., undocumented workers giving their employers false information because they're not legally authorized to work in the United States)


What Do They Mean?

Do no match letters mean the employees can't work in the U.S.A.?

"No" is the quick answer. SSA specifically states in these letters that merely the fact that a current or former employee's name appears does not apply to that individual's work authorization status and that no match letters alone are not sufficient grounds to take adverse employment action against these individuals (e.g., terminate them).

However, the receipt of a no match letter puts employers in a tough position. If you take adverse action against a named worker due to the letter, you risk legal claims for unlawful termination and discrimination (particularly under the antidiscrimination provisions of the Immigration and Naturalization Act that prohibit discrimination based on national origin, citizenship status, immigration status, document abuse during the employment eligibility verification process, and retaliation).


What Do They Mean?

But, if you continue employing workers named in the letter who may have given you false information about their work authorization status, you could be employing people who aren't legally allowed to work in the United States!

(Note: In legal terms, no match letters alone do not create "constructive knowledge" that an employee is not legally authorized to work. Only the U.S. Department of Homeland Security has the legal authority to determine conclusively whether a person is legally authorized to work in the United States. However, you should talk with your employment counsel about the next steps to consider if the no match letter is just the latest in a series of questions arising about any given worker's authorization status.)


What Should You Do?

Consider establishing a workplace policy (distributed to all employees) reminding workers to compare the name and Social Security number that appears on their payroll statements or check stubs with the information on their Social Security cards, to ensure that the Social Security taxes withheld from their wages will be credited properly within SSA records. You should keep this policy in your handbook and, once a year, insert a copy in the payroll checks you distribute.

Once a no match letter arrives, don't ignore it! Note its date of arrival. Be aware that these letters don't always come straight to HR - they may go instead to your chief financial officer or payroll department, as well as outside accountants and tax preparers. You should alert these potential recipients that no match letters should be referred directly to you in HR. (Also, don't allow individual managers who might receive no match letters directly for some reason to deal with them - make sure they're sent straight to you.)


What Should You Do?

Make a copy of any no match letters you receive, and give the copy to each listed employee (and to their union representatives, if you operate in a union environment). Tell these workers that the SSA is trying to confirm that their withheld taxes are being credited to the proper accounts, that you aren't going to take adverse action against them, but that they should check their names and SSNs to correct any errors.

Instruct these employees to deal directly with SSA, and allow them plenty of time to take care of the issue (including time off, if needed). You can meet periodically with the employees to stay updated on their efforts, but don't ask employees identified in no match letters to bring you their Social Security cards or other immigration-related documents. Once you've reviewed these types of documents for new hires as part of the I-9 verification process, you're not allowed to re-check or review these documents (doing so could be construed as illegal discrimination or acts of intimidation against workers).


What Should You Do?

(How much time should you give workers to resolve the mismatch? There are no federal regulations defining a "reasonable period of time" for mismatches to be fixed. However, SSA has thrown out the period of 120 days as the time it will put an E-Verify "tentative nonconfirmation" into continuance, which suggests that this time period is a good rule of thumb for no match letters as well.)

Should you discharge workers who absolutely fail to take no match letters seriously or who fail to resolve the mismatch within a reasonable time period? You may be on firm legal ground to do so, but you should definitely consult with legal counsel before you take this step!


What Should You Do?

Meanwhile, check your own reports to the SSA (e.g., W-2s) to make sure you didn't make the mistake on your end. If you find the error, alert the SSA and submit the correct information.

Do not assume that, because workers are named in no match letters, they're undocumented workers or they've lied to you about their work status. There are many innocent reasons why mismatches occur, especially mistakes with W-2 reports or typographical errors.


What Should You Do?

Do not take adverse action (threats, intimidating statements or acts, suspensions, or terminations) against any worker named in a no match letter. Doing so is a sure-fire way to expose your organization to discrimination claims and other legal trouble!

If the employee offers to show you a document showing the mismatch has been resolved, you may review it - but, don't require the workers to provide you any written confirmation that the error has been fixed (such as a note from SSA).


Other No Match Sources

Could you receive mismatch notices from sources other than SSA?

Yes. Sometimes, you'll receive alerts from other organizations about possible name/SSN mismatches:

– Vendors you've engaged to conduct employment background checks– Healthcare providers offering care to your employees via your employer-

sponsored health plans– Third-party identity theft inquiries

Though these alerts do not constitute proof that an employee is not legally authorized to work in the U.S.A., you should consider treating them the same way you treat SSA no match letters: check your records for the error, and alert employees about the discrepancy (asking them to resolve it if possible).


What About E-Verify?

Both SSA no match letters and E-Verify “tentative nonconfirmations” (TNCs) rely on SSA databases.

However, SSA no match letters do not bear weight on an individual employee's work authorization, while E-Verify TNCs are designed specifically to alert employers that an employee's work authorization is in question. TNCs also give workers the chance to correct any discrepancies before the determination about their work status becomes final.


Ways to Minimize Mismatches

Can employers take steps to minimize the receipt of no match letters?

You can use two different services to verify employees' names and SSNs against SSA's records, to avoid mismatches in the first place:

– The Social Security Number Verification Service (SSNVS) - a free online service for employers

– The Telephone Number Employer Verification (TNEV) - similar to SSNVA, but an automated phone service

Note: You may use these services ONLY for wage reporting purposes - not for other reasons such as attempting to verify work authorization status!


The I-9 Form


Generally, U.S. employees must provide documents that show (a) their identity and (b) their legal eligibility to work in the United States.

Also, employees must complete an Employment Eligibility Verification Form – called the Form I-9 – attesting under penalty of perjury that they are either U.S. nationals or aliens authorized to work in the United States.

Here's the link to download the latest version of the Form I-9:

http://www.uscis.gov/i-9

The I-9 Form


You must use the Form I-9 with the revision date of either February 2, 2009, or August 7, 2009, showing in the bottom right-hand portion of the form. (Why two dates? It's a long story of bureaucracy!)

All U.S. employers are covered by the I-9 rules, regardless of how many people you employ. (If you have only one employee, you must have a valid, completed I-9 on hand for that person.)

You must use I-9 to verify the identity and employability of all workers hired after November 6, 1986.

The I-9 Form


The I-9 form has three sections:

Section 1: Completed by the EMPLOYEE before starting work

Section 2: Completed by the EMPLOYER by the end of the third business day after an employee starts work

Section 3: Completed by the EMPLOYER re-verifying rehired workers

The I-9 Form


Section 1

New employees must complete Section 1 before they begin work.

They must answer the questions about name, address, and date of birth. Then, they must check the box regarding authorization to work in the United States. Then, they must sign and date the form.

They may have help completing the form, including your assistance or the use of a translator or personal aide (depending on the worker's disability).

The I-9 Form


Section 2

Once new workers have completed Section 1, you must complete Section 2 by the end of the third business day after the employees' start date.

The employee must present to you an original document or documents that establish their identity and their employment authorization, and you will record information about these materials in Section 2 (more details to come).

Also, you will fill in the start date, your name and title as the employer representative, and the business name and address.

Then, you must sign and date Section 2.

The I-9 Form


Section 2

Your new employees may provide documents of their choice (don't require specific documents – you must let your workers pick the ones they wish to submit!) from a list of acceptable documents provided by the U.S. government. There are two options for your workers:

They may provide ONE document from List A (documents that establish BOTH identity and employment authorization); OR

They may provide ONE document from List B (documents that establish identity) AND ONE document from List C (documents that establish employment authorization).

The I-9 Form


Section 2

You must examine the document(s) presented to you, and make sure that (in your opinion) the materials reasonably appear to be genuine, they relate to the individual employee, they authorize that individual to work in the U.S.A., and they are unexpired originals (not photocopies).

The I-9 Form


List A – establishing BOTH identity and employment authorization

1. U.S. Passport or Passport Card2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)3. Foreign passport that contains a temporary I-551 stamp or temporary I-551

printed notation on a machine-readable immigrant visa (MRIV)4. Employment Authorization Document (Card) that contains a photograph (Form I-

766)5. In the case of a nonimmigrant alien authorized to work for a specific employer

incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form

6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

The I-9 Form


List B – establishing identity

(For individuals 18 years of age or older)

1. Driver's license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address

2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address

3. School ID card with a photograph4. Voter's registration card5. U.S. military card or draft record6. Military dependent’s ID card7. U.S. Coast Guard Merchant Mariner Card8. Native American tribal document9. Driver’s license issued by a Canadian government authority

The I-9 Form


List B – establishing identity

(For individuals younger than 18 who do not have the documents mentioned earlier)

1. School record or report card2. Clinic, doctor or hospital record3. Day-care or nursery school record

The I-9 Form


List C – establishing employment authorization

1. U.S. Social Security account number card other than one that specifies on the face that the issuance of the card does not authorize employment in the United States.

2. Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545)

3. Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350)

4. Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal

5. Native American tribal document6. U.S. Citizen Identification Card (Form I-197)7. Identification Card for Use of Resident Citizen in the United States (Form I-179)8. Employment authorization document issued by DHS (other than those listed

under List A)

The I-9 Form


Should you keep copies of the employee's documents? You are not legally required to do so. However, you should consider retaining copies, filing them with the completed I-9 forms.

If you do keep copies, apply this policy across the board, consistently, for all new workers (i.e., keep copies for all new employees, not just certain workers).

Also, keeping photocopies won't help if you fill out the I-9 incorrectly, so double check the form (both your portion and the employee's portion) before you file everything away for each worker.

How hard should you try to verify the authenticity of these documents? The key word is "reasonably" - if the documents reasonably appear to be genuine (no obvious tampering marks, no misspellings, the photo and/or name on the document matches the employee), you're showing a good-faith effort in accepting the documents.

The I-9 Form


You must retain the I-9 form (and any document photocopies you've made) for as long as an employee works for you.

Once the employee leaves your organization, you should retain these materials for (a) at least three years from the date of hire and (b) at least one year from the date of termination - whichever is longer.

Keep these materials in separate, locked files (away from the main personnel files).

You may also scan in these materials and store them in electronic formats.

Avoid keeping these files in centralized (headquarters) locations – it's usually better to keep them on each work site if you have multiple workplaces.

Once the retention deadline has been met, you may purge the forms (shred or destroy them thoroughly).

The I-9 Form


Section 3

You must complete Section 3 when you re-verify employees who once worked for you, left, then came back.

Employers are not required to re-verify the status of individuals they previously employed if the worker is rehired within three years of the initial execution of the I-9 form, as long as their work authorization documents have not expired in the meantime. If they did, you must re-verify using Section 3 (including a re-examination of the worker's documents). But, if the employee's work authorization document that was presented when he/she was hired originally is still valid, there's no need to review the document.

The I-9 Form


Other I-9 Tips

• Don't have applicants fill out I-9 forms. Put a notice on your application forms and other paperwork that employment offers are contingent on producing the proper documents to satisfy I-9 requirements. Then, new hires can fill out the I-9 after you've made the formal job offer.

• Don't accept photocopied or expired documents.• Don't tell employees which documents to present – let them pick from the

three lists.• Don't single out individual employees for closer scrutiny or request more

than what is required. Doing so could leave you open to bias claims.• Don't require new hires to have a Social Security number for I-9 purposes

(but, remember that they must have SSNs when they fill out federal and state tax withholding forms).

The I-9 Form


“Grandfathered” Employees

Employees hired on or before November 6, 1986, are "grandfathered," which means they do not have to complete the I-9 form and employers are not required to verify their status. The grandfather status will continue for such employees until they quit, are terminated, are deported from the United States, or otherwise leave the country. Temporary employment interruptions such as vacation, illness, a strike, suspension, or temporary leave of absence will not cause these employees to lose their protected status.

E- Verify


E-Verify is a web-based program that allows employers to verify the employment eligibility of their new hires and certain other workers electronically.

It's run by the U.S. Dept. of Homeland Security (DHS) and the U.S. Social Security Administration (SSA).

It's free of charge to employers in all 50 states.

It's also voluntary, unless you're required to use it by federal or state law.

E- Verify


E-Verify does NOT substitute for I-9s – it's in addition to them.

You must post workplace notices stating that you participate in E-Verify. You must post two notices in areas visible to prospective employees:

(a) a notice stating that your are an E-Verify participant ,and

(b) an anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (U.S. Justice Dept.).

E- Verify


The advantages of using E-Verify:

1. You'll receive very quick electronic confirmations of a new hire's employment eligibility.

2. The system reduces errors resulting from the I-9 process.

3. If you use E-Verify, you'll have the start of a good-faith defense if you're accused later of hiring illegal workers.

4. It gives you more certainty in the hiring process.

E- Verify


If you wish to register to use E-Verify, you may do so via one of three choices:

• Employer - You will perform the verification queries for each individual new hire (the most common option)

• Designated Agent - You will perform the verifications on behalf of your client companies

• Corporate Administrator - You will oversee E-Verify accounts for multiple workplaces (though you won't perform verifications yourself)

1. Go to http://www.vis-dhs.com/EmployerRegistration2. Select the "Sign Up" option, and follow the instructions3. Sign the Memorandum of Understanding electronically4. Read the user manual, and complete the Web-based tutorial5. Make sure any designated employees whom you've authorized to use E-Verify

also read the manual and complete the online training

E- Verify


Here’s a short list of the obligations you incur when you sign the E-Verify Memorandum of Understanding (MOU) during registration:

• You will use E-Verify only after new hires have accepted employment offers and completed their I-9 forms.

• You will use E-Verify only to verify the employment eligibility of new hires (not existing workers, except as required for certain government contracts).

• You will use E-Verify with all new hires within three days of their actual start date.

• You will display federal notices for E-Verify in your workplace.

• You will accept only List B ID documents with photographs as part of your I-9 procedures.

E- Verify


• You agree to comply with employer responsibilities related to tentative non-confirmations (TNCs), which we’ll discuss later.

• You agree to permit DHS or SSA to make “periodic visits” to review your E-Verify records.

• You will record and store E-Verify authorization responses.

• You understand that your participation in E-Verify is not confidential.

• You understand that you can terminate the E-Verify program only after giving thirty (30) days’ notice.

• You understand that good-faith compliance with the E-Verify rules may protect you from civil and criminal penalties related to claims of hiring unauthorized workers.

E- Verify


Generally, you should use E-Verify only with newly hired employees (unless you're required as a federal contractor to use it with all workers).

With every new hire, you should follow these steps:

• Require the completion of an I-9 form by each new employee within his/her first three days of employment.

• Use the I-9 form to enter information into the E-Verify system.

• The E-Verify system will query DHS and SSA databases to verify the employee's identity and employment eligibility. The SSA verifies names, Social Security numbers, and dates of birth, as well as citizenship if the worker stated he/she is a U.S. citizen. Meanwhile, DHS verifies the employment eligibility of non-citizens.

• The system will give you a response (usually within seconds).

E- Verify


Response # 1: Employment Authorized

You'll receive this confirmation if the information provided by your new hire matches SSA/DHS records.

You must record the system-generated verification number on the I-9 form (or, print the screen showing the transaction number).

E- Verify


E- Verify


Several states now require the use of E-Verify:

Arizona and South Carolina require its use by all employers.

Mississippi requires employers with at least 30 workers to use it, but this rule will extend starting July 1, 2011, to all employers regardless of size.

Numerous states (e.g., Arkansas, Colorado, Georgia, Minnesota, Nebraska, Utah) require public employers and state contractors to use E-Verify.

E- Verify


Federal contractors will be required to participate in E-Verify if:

• Covered Prime Contract Value Threshold is above $100,000;• Contract took effect after Sept. 9, 2009; and• Federal Acquisition Regulation contract specifically requires participation in E-

Verify.

Subcontractors must also participate in E-Verify:

• When the prime contract will not be completed within 120 days…• … unless the flow down value of the contract is less than $3,000.

E- Verify


Bias Claims

The antidiscrimination provisions of IRCA were adopted based on fears that employers would have a tendency to discriminate in employment practices rather than run the risk of hiring an illegal alien. Despite the fine points of IRCA and Title VII, employers should be particularly cautious about any employment practice that could be interpreted as discriminating against job applicants or employees on the basis of their nationality or citizenship.

To protect against discrimination charges, employers should:

– Allow employees to choose which work eligibility and identity documents to use, as long as they are on the acceptable list.

– Not ask for identity and work authorization documents until after an individual is hired unless all applicants are treated in this way. Saving time by checking in advance about individuals who appear foreign is discrimination.

– Not give a preference based on individuals residence status (i.e., a legal permanent resident versus an asylum seeker with a temporary work permit).


Bias Claims

The U.S. Justice Dept. offers these tips for avoiding immigration-related discrimination claims:

• Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

• Accept the documents the employee presents. As long as the documents prove identity and work authorization and are included on the list of approved documents they are acceptable.

• Accept documents that appear to be genuine (establishing the authenticity of a document is not an employer's responsibility).

• Avoid "citizen only" or "permanent resident only" hiring policies. In most cases, it is illegal to require job applicants to have a particular immigration status.


Bias Claims

• Give out the same job information over the telephone to all callers, and use the same application form for all applicants.

• Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of employees.

• Keep the completed I-9 form on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later.

• Make the forms available to government inspectors upon request.

• On the I-9 form, verify that documents establishing identity and work authorization for all new employees, U.S. citizens and noncitizens alike, have been inspected.


Bias Claims

• Be aware that U.S. citizenship, or nationality, belongs not only to persons born in the United States but also to all individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the U.S. Virgin Islands, the Commonwealth of Northern Mariana Islands, American Samoa, and Swains Island.


ICE Audits/Inspections/Raids




What happens when ICE decides to audit, inspect, or raid your workplace?

If ICE plans to give you notice, ICE agents will typically hand-deliver a "notice of inspection" to you demanding to inspect your I-9 forms. Unless you are using E-Verify, you will have three business days to comply. (You may ask for more days - if you need to collect I-9 forms from off-site storage, for example - and, usually, ICE will agree to any reasonable request.) You may waive the three-day notice if you wish, but it's not recommended.

If ICE shows up without giving you the three days of notice, you may insist on receiving the written notice of inspection giving you three days to prepare. ICE may provide this notice and return in three days - or, sometimes, ICE agents may never come back. (Keep in mind, however, that ICE does not need a subpoena or warrant to inspect your files - just the notice.)



You may provide the I-9 copies to the ICE agents in their original forms, on microfilm, on microfiche, or in electronic copies. Before you turn over the copies, though, you should review all of the files to ensure that you have made any needed paperwork corrections and that the I-9 forms and any supporting documentation are in order.

If you find situations where an employee's I-9 is not in order, you should talk with the employee to address the problems. If you can't correct problems with incorrect or insufficient I-9 records and documents, you should talk with your employment counsel about discharging the affected workers.



Typically, ICE agents will remove the I-9s you provide them when they return to your workplace. (Always make sure you keep the originals or copies of the I-9s before they're taken away!) The agents will almost always audit your records in their offices, not on your site, but ICE may decide in some circumstances to review the forms on your site.

They will be looking for any instances in which you have not correctly filled out the I-9s or secured the documentation to show that your employers have proper work authorization. They will review the I-9s for not only your current workers, but also any employers discharged within the past two years, for similar violations.

Questions?

John G. Nahajzer, Esq., andMonique van Stiphout, Esq.

Maggio + Kattar, P.C.11 Dupont Circle, N.W., Suite 775

Washington, DC 20036Phone: (202) 483-0053

Fax: (202) 483-6801www.maggio-kattar.com


© 2010 Employer Resource Institute. All Rights Reserved

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