1. I-9 Employment Eligibility
Verification Compliance
Procedures
Presented by:
David H. Nachman, Esq.
Nachman, Phulwani, Zimovcak Law Group, P.C.

2. Immigration Reform and Control Act
of 1986 (“IRCA”)
11/6/1986
Requires that all employers complete
Employment Eligibility Form (I-9) for newly
hired employees.
Designed to control the problem of illegal
immigration

3. IRCA’s Provisions
New Employee must provide documents reflecting:
He/She is eligible to work
Identity must match work eligibility documents
Sanctions for paperwork violations and document abuse.
Sanctions for knowingly hiring or retaining unauthorized
workers.
Created the OSC to enforce anti-discrimination provision of the
INA.

4. Changes After IRCA 1990 -1996
Immigration Act of 1990 (“IMMACT 90”).
Illegal Immigration Reform And Immigrant
Responsibility Act (“IIRAIRA”).
Document Fraud Provisions against Employers.
Bono Amendment and the “Good Faith
Defense” for Employers.

5. Changes After IRCA
1997 – Interim Rule Reducing the Number of
Documents for I-9 Form:
Certificate of U.S. Citizenship (item #2)
Certificate of Naturalization (item #3)
Reentry Permit (item #8)
Refugee Travel Document (item #9)
2007 – Rebranded and New I-9 Form reflecting the
changes from 1997.
Most recent version – 8/7/2009

6. Recent Updates
Expired Documents are no longer acceptable for initial
verifications.
Section 1: Separate boxes for U.S. nationals and U.S.
Citizens (4 boxes instead of 3).
Old Temporary Resident Cards and Employment
Authorization Cards are no longer acceptable.
Added Acceptable Documents to List A:
U.S. Passport card
Passport from Federated States of Micronesia
Passport from Republic of the Marshall Islands
More updates coming in the future per CIS…

7. RECENT UPDATES: The New I-9?
In March 2012, proposed new I-9 form was
published for public comment
Comment period extended till October 15, 2012
2 page long New I-9 form, takes 35 minutes to
complete as per USCIS
Still uncertain when the new I-9 form will be in
effect

8. Why do we need a new I-9?
Increasing worksite enforcement and fines for
minor mistakes
Current I-9 form can be confusing and difficult
to complete
Lots of external guidance, which is often
inconsistent

9. Current vs The Proposed

10. Section 1 Employee Information
Proposed Changes:
Changes to Last and First Name Fields
Maiden name has become “Other Names”
SSN boxes
Email address and telephone number

11. Section 1 Attestation
Proposed Changes:
“USCIS Number” mentioned in instructions
Foreign Passport Information
More defined signature box

12. Section 1 Preparer/Translator
Important Noticeable Points:
When to complete?
How are electronic I-9s impacted?

13. Section 2 Employer Review
Employee name moved below Instructions to prevent over-documentation
section 2 instruction
List A “third document” fields added

14. Section 2 Certification
Important Noticeable Points:
Attestation is numbered
Employee’s “first day of employment” is more visible
Separate employer address fields

15. Section 3 Reverification & Rehires
Important Noticeable Points:
No longer for updating?
Still no place for issuing authority
New “Print Name” field

16. List of Acceptable Documents

17. Employer Sanctions
Employing Unauthorized Aliens:
$250-$10,000 per alien.
Improperly Completed, Retained or Missing Forms:
$100-$1,000 per employee.
Knowingly Hiring or Continuing to Employ Unauthorized Alien:
Up to $3,000 per unauthorized alien.
Imprisonment (if convicted).
Participating in Document Fraud:
1st offense: $250-$2,000.
Additional offenses: $2,000-$5,000.
Discrimination:
$250-$2,000 - $10,000 per individual.
Requesting Specific Documentation:
$100-$1,000 per individual.

18. Internal Audits
Missing or deficient I-9 Forms discovered during
an audit.
Missing I-9’s - complete one immediately and
attach an explanatory note for your records.
Deficient I-9’s - immediately correct and
initial/date any changes.
Termination of employees who cannot provide
valid documents to avoid “knowing hire” or
“knowing retention” violations.
Exemptions from I-9 requirement.

19. Recent Enforcement
July 2009 - ICE announced and changed its
“Worksite Enforcement” policy.
Since that time, there has been an increase in
Notices of Inspection (NOIs). In July, 654 NOIs
were issued, and an additional 1,000 businesses
were served with NOIs in November 2009.
in October of 2009, an internal ICE
memorandum was released outlining ICE’s
worksite policy that reinforced its commitment
to levy civil fines against employers, while also
“re-focusing efforts to develop criminal cases
against employers who hire and use illegal
workers.”

20. New Enforcement Methodology of the ICE
Protocols and Procedures
No More Raids: “Today’s enforcement action is
part of a multi-phased approach utilized by ICE
to ensure that employers are held accountable
for maintaining a legal workforce.” – Baltimore Special Agent in
Charge William Winter
Employers will likely now see:
Worksite enforcement actions targeting allegedly
“egregious bad faith actors”
Forensic auditors scrutinizing Form I-9s

21. Mergers and Acquisitions
If a business is acquired by another, the new
employer must obtain the I-9’s of the acquired
entity and will be held responsible for any
deficient forms.
New I-9 Forms do not have to be completed.
If employer chooses to do I-9’s be sure to use
NEW I-9 Form.

22. Contract Employees
Companies are not required to maintain I-9’s for
contract employees.
The contractor is responsible for completing Form I-9’s
for its own employees.
Employers must not contract labor to avoid directly
hiring unauthorized aliens
Knowingly using a contractor that employs
unauthorized aliens will result in employer sanctions.

23. Notice of Inspection (NOI)
The Notice of Inspection arrives in person
(along with an administrative subpoena),
generally via Special
Agents from ICE, served on a company
representative.
Employers are given 3 days to provide I-9s for
inspection by ICE.
There have been approximately 2,000 audits
initiated this year alone.
Specific practices vary from office to office, and
sometimes even from agent/auditor to
agent/auditor.

24. In November 2009, ICE provided partial
statistics on the 654 July NOIs:
ICE agents reviewed more than 85,000 Form I-9s
and identified more than 14,000 suspect
documents - approximately 16 percent of the total
number reviewed.
To date, 61 Notices of Intent to Fine (NOIFs) have
been issued, resulting in $2,310,255 in fines.
267 cases are currently being considered for NOIFs.
ICE closed 326 cases after businesses were found to
be in compliance with employment laws or after
businesses were served with a Warning Notice in
expectation of future compliance.

25. Investigative Interviews to discuss I-9 Audit with
ICE, Forensic Auditor and Employer
The most frequently asked questions include:
Who are the owners of the company?
Who has the authority to hire and fire employees?
Who has the authority to complete the I-9 form?
What are the names and titles of all such individuals?
What is the hiring process?
At what point in the hiring process does HR complete the I-9 form?
Has HR had any training to determine if the document is fraudulent?
What type of training, if any, does HR receive in regard to completing the I-9?
How does the company recruit its workers?
Does the company have any independent contractors on staff?
Does the company ever use any staffing agencies?
Does the company participate in the H-2B or any other non-immigrant visa
program?
How are the identity and verification documents recorded?
How are the identity and verification documents kept?
What does the company do with the I-9 form after an employee is terminated?
Does the company have a compliance program?
Does the company use translators in the I-9 process?
Who generally serves as the translator?
Does the company use E-Verify? And if not, why not?

26. Next Steps in the I-9 Investigation
ICE notifies the employer of any technical or procedural violations by issuing
a “Notice of Technical Violations,” providing a 10-day opportunity for the
employer to correct the errors.
In cases that warrant such action, ICE may also issue a “Notice of Suspect
Documents” listing certain employees where it is unclear if they are
unauthorized to work.
Employers are then provided with time to contact the listed employees and
have them provide additional, and alternative, evidence of work eligibility.
Without such proof the employer must terminate employment.
How much time provided to employees to review and respond to the Notice
varies.
In other cases, ICE can move forward immediately with issuing a Notice of
Unauthorized Aliens.
Even with a final notice
such as this, companies should carefully review the listing for errors on the
part of the government.

27. Final Notices from ICE
If a review of the I-9 files reveals that the
employer has small violations, but the company
is generally in compliance (and ICE expects
continued compliance in the future) ICE may
simply issue a “Warning Notice” to the
employer.
If there is a serious I-9 violation, a pattern of
noncompliance, or the employer fails to correct
its technical violations, ICE can draft a Notice of
Intent to Fine (NOIF) to the employer.

28. The Role E-Verify Plays in an I-9
Audit/Investigation by ICE
ICE has been “encouraging” employers to enroll
in E-Verify by using language such as:
“If the company doesn’t agree to use E-Verify, then
it will likely be assigned fines during its next I-9
audit,” or
“E-Verify will eliminate the possibility of hiring of
any criminal aliens.”
E-Verify is clearly a critical best practice and
certainly the most advanced tool available to
employers today.

29. USCIS E-Verify Program
“Voluntary” program for US Employers.
Partnership between the Department of
Homeland Security (DHS) and Social Security
Administration (SSA).
Provides a means for participating employers to
verify the employment eligibility status of
newly-hired employees.

30. What is E-Verify?
The E-Verify system, formerly known as the
Basic Pilot/Employment Eligibility Verification
Program, is an internet-based system operated
by DHS (CIS) in partnership with SSA that allows
participating employers to electronically verify
the employment eligibility of their newly hired
employees.

31. Federal Contractors and E-Verify:
The proposed EFFECTIVE DATE of the FINAL RULE for
the E-Verify Registration for Federal Contractors is
January 15th, 2009.
Requires that all Federal Contractors, unless exempt,
register and use the E-Verify System.
E-Verify use for Federal Contractors has its genesis in
Executive Order 13465 promulgated by President
Clinton in 1996 (February 1996).
Executive Order 13456 promulgated by President Bush
further supported Clinton’s Executive Order.

32. Enrollment in E-Verify
(1) Enroll as a Federal Contractor in the E-Verify
program within 30 calendar days of the contract
award, if not already in E-Verify; and
(a) Within 90 calendar days of enrollment in the E-
Verify program, begin to use E-Verify to initiate
verification of employment eligibility of all new hires of
the Contractor, who are working in the U.S., whether
or not assigned to the contract (and within 3 business
days after the date of hire); and
(b) For each employee assigned to the contract, initiate
verification within 90 calendar days after the date of
enrollment or within 30 calendar days of the
employee's assignment to the contract, whichever date
is later.

33. Once in E-Verify:
Federal Contractor at the time of the contract
award, shall use E-Verify to initiate verification
of employment eligibility of:
ALL NEW EMPLOYEES
EMPLOYEES ASSIGNED TO THE CONTRACT

34. E-verify and Paper I-9s
E-verify does not replace the need to do a paper
I-9. It is simply and electronic way for the
employer to verify what is on the form I-9.
The I-9’s still have to be retained.

35. I-9 Retention
Forms must be retained for:
One year following an employee’s termination.
Three years from the employee’s date of hire.
WHICHEVER IS LATER!

36. Mitigation Factors
The following are mitigating factors that are
taken into account by ICE and other regulatory
agencies when determining the fines in
connection with I-9 Audits/Investigations:
Size of Business
Acting in good faith
That the violations are non-serious.
That there is no history of previous violations.
That none of the counts involved aliens who are
unauthorized to be employed in the United States.

37. The Good Faith Defense and What
Employers Need to Know
Under the Bono Amendment, employers that are
found to have committed certain omissions or failures
in the I-9 procedures will not be subject to a fine, but
will be given notice of the “technical” violations, and
will be granted 10 days to cure the deficiencies.
Subsequently, in 1997, then-INS General Counsel Paul
Virtue issued a memorandum that outlined the
agency’s position regarding which violations were
“substantive” and which were “technical or procedural
The following year, INS published a proposed
regulation which defined “substantive” versus
“technical violations,” largely following the Virtue
Memorandum

38. Substantive vs. Technical Violations
It has been determined that verification failures that
are NOT “technical or procedural” include the
following:
Failure of the person or entity to:
Prepare or present the Form I-9;
Complete Section One of the Form I-9;
Complete Section Two of the Form I-9;
Complete Section Three of the Form I-9.
An employer who is provided with at least ten business
days to correct technical or procedural failures after
notification of such failures and corrects the failures
within the designated time period is deemed to have
complied with the requirements of section 274A(b) of
the Act.

39. Observations
Requests for copies of immigration filings are being made to USCIS during the
audit/investigation process.
There are disagreements regarding the definition of technical and
substantive I-9 violations.
ICE Mutual Agreement Between Government and Employers (IMAGE)
program has amended the protocols to include 6 instead of 10.
More training is being offered to companies by IMAGE and ICE agents in
general.
There is more cooperation among government agencies, including data
sharing agreements.
ICE is developing more detailed training programs for the forensic auditors as
well as their Special Agents.
No streamlined guidance regarding audit protocols for Electronic I-9s.

40. ICE’s IMAGE Program
To enroll in IMAGE, Employers must submit an
application to ICE.
The application process includes the following:
Self Assessment.
Form I-9 Review by ICE (NOT an audit).
SSNVS Review of ALL employees.
Note: ICE’s IMAGE program requires that employers verify ALL
employees with E-Verify (Basic Pilot).

41. IMAGE con’t.
10 Steps of IMAGE:
Enroll in E-Verify.
Anti-Discrimination Awareness Training.
I-9 Training for Hiring Staff.
Independent Dual Review of I-9 Forms.
Resolution of SSA No Match Letters.
Implementation of Internal Tip Line (encourage employees to inform
employers of what is going on inside the company).
Self-Reporting Procedure to Disclose Any Deficiencies to ICE.
Annual Independent I-9 Process Audit.
Encourage Contactors and Business Partners to Implement the Same
Programs.
Annual Report to ICE with results of program participation.

42. Advice to Employers
Administrative audits are clearly the tool of choice and
employers can expect them to continue to increase in
numbers and gain momentum in terms of impact and
expense. With a likely push towards an integration of
the Form I-9 and E-Verify, along with the increased use
of electronic I-9s, additional monitoring of the E-Verify
system, and a better-trained and focused core of ICE
agents, employers need to consider the importance of
proactive compliance planning and training. Although
the government’s mechanisms will continue to change,
it is expected that the focus on audits will become
even more critical over time.

43. Social Security No Match Issues
No Match Letters are sent to both employers
and employees.
Letters are generated and send to employers if
.5% of the workforce has a SS no match issue.
Can result from any number of factors.

44. New Safe-Harbor Procedures for
Employers for No Match Issues
Within 30 days, employer should check records
and contact employee to check their records
too.
Within 90 days the employee must take steps to
resolve the issue.
Then the employer has 3 final days to complete
a new I-9 (with a new SSN) if the issue was not
resolved.

45. Any Questions?
Feel free to contact David H. Nachman, Esq.
for more information at: 201-670-0006
x100
info@visaserve.com
Or visit us on the web at:
www.visaserve.com