1. Preparing for the day when ICE comes knocking
I-9 Compliance
Preparing for the day when ICE comes knocking
Presented by Kelley L. Thurston, Esq. Davis Miles McGuire Gardner, PLLC

2. Immigration Reform and Control Act of 1986
Requires all employers to complete a Form I-9 to verify the identity and work authorization of every employee hired.

3. Immigration Reform and Control Act of 1986
Federal Immigration Law forbids 3 things
Knowingly hiring an unauthorized alien
Continuing to employ an unauthorized alien after you are aware that he/she is unauthorized
Hiring an individual without complying with the employment verification process

5. Form I-9 Version Most recent version – 7.7.17
Spanish version used in PR only

6. Form I-9 Timing Must be completed within 3 days of 1st employment
Day = any period that the company is open for business
May be completed at any point after job offer is accepted
Cannot be completed prior to job offer

7. Form I-9 What’s my part? Section 1 – Completed by employee
Section 2 – Completed by employer
Section 3 – Completed by employer

8. Form I-9 What documents will work?
List A - establishes both identity and authorization to work
List B - establishes identity
List C – establishes employment authorization

9. Form I-9 What documents will work? Employee must choose documents
Employer cannot choose the documents or tell employee what to use
More is not better

10. Form I-9 What documents will work? Beware: The wallet dump
The casual instruction
Being too helpful

11. Form I-9
Retention
Each Form I-9 must be kept for the later of 3 years after the employee’s hire date or 1 year after the employee’s termination date
Practice tip: recommended that I-9s be kept separate from other personnel files.
Convenient in the event of an ICE audit
Helps avoid appearance of discrimination

12. Form I-9 Retention Electronic retention is allowed.
HOWEVER – subject to strict guidelines:
Must have audit tracking to know when accessed or altered
Must have backup system to protect against loss
Must have capability to attach electronic signature
Must have capability to produce a printed copy

13. Form I-9 When you don’t need one Employee hired before 11/6/1986
Employee not physically working in the U.S.
Employee returning to work
Rehire within 3 years of original Form I-9
Contractors and temps
Casual workers who provide occasional services in a private home

14. ICE ICE BABY WHO’S INVOLVED
USCIS – United States Citizenship and Immigration Service
ICE – Immigration and Customs Enforcement
DHS – USCIS and ICE are part of Department of Homeland Security
IER – The Immigrant and Employee Rights Section part of the DOJ
DOJ – Department of Justice

15. ICE’s Worksite Enforcement Priorities
On January 10, 2018 ICE announced its 3-pronged approach to worksite enforcement
Compliance through I-9 inspections, fines and referral for debarment
Enforcement and arrest of employer and unauthorized employees
Outreach to instill a culture of compliance and accountability

16. What it looks like
From Oct. 1, 2017, - May 4, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests. From October 2016 to September 2017 – HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

18. The Inspection Process
Most Common Notices
Notice of Inspection Results
Notice of Suspect Documents
Notice of Discrepancies
Notice of Technical or Procedural Failures
Warning Notice
Notice of Intent to Fine

19. I Got a Notice of Intent to Fine
Options:
Negotiate a settlement with ICE
Request a hearing within 30 days of receiving the Notice – starts adjudicative process
Take no action – will receive a Final Order

20. Other Factors Considered
Federal law requires that certain factors be considered when assessing a penalty: -business size -good faith -seriousness of each violation -past compliance history

21. associated violations occurred after November 2, 2015)
Knowing Hire / Continuing to Employ Fine Schedule (Effective for penalties assessed after January 27, 2017 whose
associated violations occurred after November 2, 2015)
Standard Fine Amount
Knowing Hire and Continuing to Employ Violations
First Tier $548 - $4, 384
Second Tier $4,384 - $10,957
Third Tier $6,575 - $21,916
0% – 9%
$548
$4,384
$6,575
10% – 19%
$1,140
$6,322
$8,547
20% – 29%
$1,754
$7,232
$11,177
30% – 39%
$2,411
$8,174
$13,807
40% – 49%
$3,069
$9,094
$16,568
50% or more
$3,726
$10,026
$19,242

22. associated violations occurred after November 2, 2015)
Substantive / Uncorrected Technical Violation Fine Schedule (Effective for penalties assessed after January 27, 2017 whose
associated violations occurred after November 2, 2015)
Standard Fine Amount
Substantive Verification Violations
1st Offense $220 - $2,191
2nd Offense $220 - $2,191
3rd Offense + $220 - $2,191
0% – 9%
$220
$1,096
$2,191
10% – 19%
$548
$1,315
20% – 29%
$876
$1,534
30% – 39%
$1,205
$1,753
40% – 49%
$1,972
50% or more
$1,862

23. Enhancement Matrix
Factor
Aggravating
Mitigating
Neutral
Business size
+ 5%
- 5%
+/- 0%
Good faith 
+ 5% 
Seriousness
Unauthorized Aliens
History
Cumulative Adjustment
+ 25%
- 25%

24. Is it Worth the Risk?

25. Is it Worth the Risk?
Abercrombie & Fitch was fined over a $1Million. An I-9 audit revealed numerous technology-related deficiencies in the company’s electronic I-9 verification system. ICE noted that Abercrombie & Fitch was fully cooperative during the audit and worked diligently to implement proper procedures to ensure future compliance.

26. Is it Worth the Risk?
Waste Management of Texas entered into a non-prosecution agreement and agreed to forfeit over $5.5Million and make remedial measures. Government was able to show a pattern and practice of hiring unauthorized workers in Afton, Texas. 3 managers were prosecuted personally and received sentences of 27, 87 and 94 months in federal prison.

27. Is it Worth the Risk?
Asplundh Tree Experts, Co., pleaded guilty to unlawfully employing aliens. The highest levels of management “remained willfully blind” while the lower level managers hired unauthorized workers. Fine: -$80 Million – criminal forfeiture money judgment -$15 Million – civil payment

28. What Can I Do? Self Audit Attorney Audit Use your free resources
Pros: covered by privilege, attorney knows what to look for
Cons: expensive, time consuming
Use your free resources
IER has webinars and a hotline
I-9 Central has good information
Use the employer handbook

29. What Can I Do?
Be sure company has appropriate policies and procedures in place
Be sure HR staff is trained on policies and procedures
Fix mistakes you find now – better late than never. Do Not Backdate!

30. A note about what you CANNOT do
Generally, employers may not treat people differently because they are or are not U.S. citizens or because of their work-authorized immigration status. (See your attorney for exceptions to this rule.)

31. A note about what you CANNOT do
Avoiding Discrimination
Be consistent
Avoid citizenship requirements
Avoid reference to visa categories
Let employees present documents of their choice
Don’t re-verify documents of employees with permanent right to work status.

32. Pop Quiz
Do I need to complete Form I-9 for independent contractors or their employees?

33. Pop Quiz
May I fire an employee who fails to produce the required documents within three business days of their start date?

34. Pop Quiz
What if I properly complete and retain a Form I-9 and DHS discovers that my employee is not actually authorized to work? Am I or my company liable?

35. Pop Quiz
How do I know whether a Native American tribal document issued by a U.S. tribe presented by my employee is acceptable for Form I-9 purposes?

36. Pop Quiz
May I accept a photocopy of a document presented by an employee?

37. Pop Quiz
The name on the document my employee presented to me is spelled slightly differently than the name they entered in Section 1 of Form I-9. Can I accept this document?

38. POP QUIZ
During a self-audit I discover that not a single one of the employees filled out the Preparer and/or Translator Certification. How can I correct this?

39. POP QUIZ
During a self audit I noticed that I reviewed and confirmed identity and right to work within 3 business days, but I did not complete section 2 until a month after the start date. How can I fix this?
Can I just mark out the date and write in the date I reviewed the documents?

40. Resources https://www.uscis.gov/i-9 https://www.uscis.gov/i-9-central

41. Sources https://www.ice.gov/factsheets/i9-inspection
Diedre D. Nero, Esq. Nero Immigration Law, P.L.

42. Davis Miles McGuire Gardner, PLLC
Questions? Thank You!!
Kelley L. Thurston, Esq.
Davis Miles McGuire Gardner, PLLC
320 Gold Ave, SW, Suite 1111
Albuquerque, NM 87102
Phone: