1. Employment Eligibility Verification (Form I-9) Compliance
March 2007

2. Fragomen, Del Rey, Bernsen & Loewy, LLP
Enrique Gonzalez III
Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
One Alhambra Plaza, Ste. 600
Coral Gables, FL 33134
Phone: (305)
Fax: (305)

3. ENFORCEMENT IN THE NEWS

4. Enforcement in the News
August - ICE arrests 41 illegal aliens working at America’s Fair in Hamburg, NY; 51 illegal aliens arrested at Oklahoma saddle factory during search warrant execution
July - ICE agents arrest 3 illegal alien workers in Gulfport; Employers in Arkansas, Kentucky and Ohio hit with criminal charges in connection with illegal alien employment schemes
June - ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles International Airport; ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles International Airport
May - ICE arrests unauthorized workers at L.A. Department of Water and Power; ICE arrests 29 unauthorized workers at construction company that services Camp Pendleton Marine Corps Base
April - ICE agents arrest seven managers of nationwide pallet company and 1,187 of the firm’s illegal alien employees in 26 states
March - ICE Worksite Enforcement Operation Nets More Than 50 Illegal Aliens

5. WORKSITE ENFORCEMENT
Expansion of the current “Basic Pilot” system nationwide
Verification System interoperable between DHS and SSA
Must electronically re-check all U.S. workers, including citizens
Machine-readable, tamper-proof ID containing biometrics
Documents used to verify employment limited to tamper-resistant and machine-readable Social Security Card or Employment Authorization Document
Substantial increase in fines

6. I-9 UPDATE
On October 30, 2004, the President signed a new bill into law, amending Section 274A(b) of the Immigration and Nationality Act (INA).
The law became effective on April 28, 2005
The new law permits, but does not require, employers to complete, sign and store I-9s electronically
The new law allows employers to go “paperless.”

7. I-9 UPDATE (con’t)
DHS finally published implementing regulation on June 15, 2006
New I-9 regulation is technology-neutral
Permits employers to adopt any electronic storage technology so long as it meets certain minimum standards, including adequate security features that
limit access to authorized personnel
insure data integrity
provide means for producing hard copies
include search and indexing mechanisms

8. SSA “NO MATCH” LETTERS ICE published proposed rule on June 14, 2006
Provided suggested procedures for employers who receive SSA “no match” letter
Procedures also apply when employers receive notification from DHS that immigration status or EAD reported for employee does not match agency records
Employers who follow suggested procedures would be provided with “safe harbor” against sanctions
ICE is accepting comments and final rule may reflect public input

9. SSA “NO MATCH” LETTERS (con’t)
Employers who receive “no match” notification are advised to:
Check their records for possible clerical errors
If necessary, request the employee's confirmation of the employer's records
If the discrepancy still cannot be resolved, repeat the Form I-9 employment eligibility verification process.
If properly followed, these procedures could safeguard the employer from a finding that it knowingly hired or continued to employ an unauthorized worker in violation of the Immigration Reform and Control Act of 1986 (IRCA).

10. DHS’s NEW IMAGE PROGRAM
DHS announced program in July 2006
ICE Mutual Agreement between Government and Employers (IMAGE), created by U.S. Immigration and Customs Enforcement (ICE)
Designed to build cooperative relationships between government and businesses and reduce unauthorized employment
Participation is voluntary
Companies that comply with program requirements will be “IMAGE certified”

11. IMAGE (con’t) Employer participants must:
Agree to a Form I-9 audit by ICE
Use USCIS’s Basic Pilot Employment Verification Program when hiring employees
Basic Pilot is an internet-based system that provides an automatic link to federal databases to help employers determine eligibility of new hires
To date, Basic Pilot has experienced substantial delays in providing verification to employers

12. IMAGE (con’t)
To become IMAGE-certified, employers must adhere to “best practices” such as:
Creating internal training programs for completing employment verification forms and detecting fraudulent documents
Arranging for audits by neutral parties
Establishing protocols for responding to SSA no-match letters
Establishing a tip line for employees to report violations
Establishing mechanisms for company to self-report violations to ICE

13. IMAGE (con’t) Benefits to employers:
ICE will provide training and education to IMAGE partners on proper hiring procedures, fraudulent document detection and anti-discrimination laws
ICE will also share data with employers on the latest illegal schemes used to circumvent legal hiring processes
ICE will review the hiring and employment practices of IMAGE partners and work collaboratively with them to correct isolated, minor compliance issues that are detected
Participation in IMAGE will help companies reduce unauthorized employment and minimize identity theft

14. DHS INITIATIVES IN COMBATING FRAUDULENT DOCUMENTS
Working with DOS to implement Western Hemisphere Travel Initiative
Limiting number and type of documents accepted
Border Officer Training
Focusing on fraudulent document detection
Biometrics and International Cooperation
Collecting biometrics via US-VISIT at Ports of Entry
Requiring VWP countries to report all lost and stolen passports to Interpol and DHS
ICE Document Fraud Operations
11 Document & Benefit Fraud Task Forces
Forensic Document Laboratory

15. FORM I-9 COMPLIANCE

16. WHO CAN WORK IN THE UNITED STATES?
U.S. Citizens
Lawful Permanent Residents
Nonimmigrants with work authorization from the USCIS
Students with work authorization (typically an “EAD”)
Others (refugees, asylees, TPS) with work authorization

17. BASIC I-9 REQUIREMENTS
Complete I-9 for every new hire since November 6, 1986
May not hire or continue to employ someone who is not authorized to work in the U.S.

18. WHO TO I-9 I-9 employees, not independent contractors
Do not I-9 employees working outside the United States or its territories
All employees in the US, even if on payroll abroad
I-9 temporary and part time employees

19. CONTRACTORS & TEMPORARY AGENCIES
No I-9 form is needed for true independent contractors
If you contract with a temporary agency for personnel, follow the following guidelines:
Clearly identifying the agency as the “employer”
Indicate the agency will comply with State and Federal requirements including, but not limited to, proper I-9 completion and maintenance.
Include an indemnification clause
Entering into a contract with “knowledge” of unlawful status can remove the independent contractor protection.

20. COMPLETING THE I-9

21. U.S. Department of Justice OMB No. 1115-0136
Immigration and Naturalization Service Employment Eligibility Verification
Please read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire individuals because of a future expiration date may also constitute illegal discrimination.
Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins
Print Name: Last First Middle Initial Maiden Name
Address (Street Name and Number) Apt. # Date of Birth (month/day/year)
City State Zip Code Social Security #
Employee’s Signature Date (month/day/year)
I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.
I attest, under penalty of perjury, that I am (check one of the following):
A citizen or national of the United States
A Lawful Permanent Resident (Alien # A_____________________
An alien authorized to work until _____ / _____ / _____
(Alien # or Admission # ___________________________________
Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct.
Preparer’s/Translator’s Signature Print Name
Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)

22. TIPS FOR SECTION 1
Section 1 must be completed by employee on or before first day of hire
Ensure that employee checks box, and signs and dates the form
If employee checks box 2, A # must be entered
If employee checks box 3, expiration date and A# or I-94 number must be entered

23. MOST COMMON ERRORS ON SECTION 1
1. Name in wrong order
2. Address incomplete
3. Social Security Number missing
4. Attestation not checked or incomplete
5. Signature missing
6. Date missing
7. Date of birth instead of current date

24. FORM I-9 SECTION 2
Section 2. Employer Review and Verification. To be completed and signed by employer. Examine on document from List A OR examine one document from List B and on from List C as listed on the reverse side of this form and record the title, number and expiration date, if any, of the document(s)
List A OR List B AND List C
Document title: _________________________ ______________________________ ___________________________
Issuing authority: ________________________ ______________________________ ___________________________
Document #: ___________________________ ______________________________ ___________________________
Expiration Date (if any): ___ / ___ / ___ ___ / ___ / ___ ___ / ___ / ___
Document #: ___________________________
Expiration Date (if any): ___ / ___ / ___
CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year) ____ / ____ / ____ and that to the best of my knowledge the employee is eligible to work in the United States. (State employment agencies may omit the date the employee began employment.)
Signature of Employer or Authorized Representative Print Name Title
Business or Organization Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)

25. REVERSE OF FORM I-9 The “List of Acceptable Documents”
Update on USCIS website
Not entirely accurate (the INS Form I-151, the old Green Card, is since March 19, 1996 no longer valid as a list A document)
WIll be revised in accordance with IIRAIRA
List A: U.S. passport may be unexpired or expired (only exception to the rule that all documents must be unexpired)
List B: all documents from list B must contain a photograph or information such as name, date of birth, sex, height, eye color, and address
List C:birth certificate no longer acceptable after IIRAIRA implemented

26. TIPS FOR SECTION 2
Section 2 must be completed by company representative within 3 business days of hire
Verification of IDENTITY and WORK AUTHORIZATION
Company representative must review ORIGINAL documents
Attach copies of documents presented to the I-9

27. MOST COMMON ERRORS ON SECTION 2
8. Columns A, B, or C left blank with copies attached
9. Document tile missing
10. Document number missing
11. Document expiration date missing

28. MOST COMMON ERRORS ON SECTION 2 (cont.)
12. Column B and C documents reversed
13. Too many documents requested
14. Date of hire missing
15. Employer certification incomplete (preprint)

29. FORM I-9 – SECTION 3
Section 3. Updating and Reverification. To be completed and signed by employer.
A. New Name (if applicable) B. Date of rehire (month/day/year) (if applicable)
C. If employee’s previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility.
Document Title: _________________________ Document #: __________________ Expiration Date (if any): ____ / ____ / ____
I attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual.
Signature of Employer or Authorized Representative Date (month/day/year)
Form I-9 (Rev ) N

30. Never Reverify  US Citizens
WHO MUST BE REVERIFIED?
Never Reverify  US Citizens
Almost Never Reverify  LPR
Almost Always Reverify  Others

31. SPECIAL REVERIFICATION ISSUES
Lawful Permanent Residents
Only reverify if I-551 stamp is presented
Other
Always reverify by expiration date in Section 1
Exception: Evidence of asylee status presented

32. SAMPLE I-551 CARD (AKA “GREEN CARD”)

33. SAMPLE I-551 STAMP

34. MOST COMMON ERRORS ON SECTION 3
Reverification not completed in a timely manner
Document provided was not acceptable or inadequately described
Over-documentation (do not reverify identity)
Employer signature or date missing

35. TIPS FOR COMPLETING I-9S ON BEHALF OF TEMPORARY WORKERS

36. HOW TO I-9 AN H-1B Acceptable List A Documents
Unexpired Foreign Passport
and
INS Form I-94 (Form I-94 should have employer’s name endorsed or Form I-797 with employer’s name should be examined)

37. HOW TO I-9 AN H-1B Acceptable List B & C Documents
List B Identity document
and
Restricted U.S. Social Security Card with legend stating “valid for work only with INS authorization” (must also see evidence of work authorization such as I-94. I-94 must have employer’s name endorsed or Form I-797 with employer’s name should be examined)

38. H-1B PORTABILITY
An H-1B worker may start working for a new company while the H-1B change of employer petition is pending so long as the following criteria is met:
Foreign national entered legally
Foreign national hasn’t worked without authorization
Non-frivolous petition is filed before I-94 card expires

39. HOW TO I-9 A PORTABLE H-1B
Acceptable Documents: Same as H-1B visa holder with the exception that employer must also have:
Evidence of filing of the change of employer petition with the CIS and
Original employer’s Form I-94

40. HOW TO I-9 AN L-1 Acceptable List A Documents
Unexpired Foreign Passport
and
INS Form I-94 (Form I-94 should have employer’s name endorsed or Form I-797 with employer’s name should be examined)

41. HOW TO I-9 AN L-1 Acceptable List B & C Documents
List B Identity document
and
Restricted U.S. Social Security Card with legend stating “valid for work only with INS authorization” (must also see evidence of work authorization such as I-94. I-94 must have employer’s name endorsed or Form I-797 with employer’s name should be examined)

42. I-94 REFLECTING ADMISSION TO U.S. AS L-1

43. L-2 VISA - SPOUSAL WORK AUTHORIZATION
Status tied to spouse’s L-1 employment authorization
Employment document is not employer specific
Must request EAD from CIS

44. HOW TO I-9 AN L-2 SPOUSE Acceptable List A Documents
Unexpired Employment Authorization Card

45. SAMPLE EMPLOYMENT AUTHORIZATION CARD

46. F-1 VISA – OPTIONAL PRACTICAL TRAINING
Students can engage in “optional practical training”, pre- or post-graduation, for a total of 12 months; part-time during school year, full-time during vacations
Not employer specific
Acceptable List A Document
Unexpired Employment Authorization Document (I-688B or I-766)

47. F-1 VISA – CURRICULAR PRACTICAL TRAINING
“Curricular” practical training allowed if part of educational program or for off-campus employment based on unforeseen extreme economic hardship
Acceptable List A Documents
Form I-688B or Form I-766
Acceptable List B & List C Documents
List B identity document in conjunction with an endorsed Form I-20 indicated employment authorization and Form I-94 reflecting that student was admitted to the US in F-1 status for duration of status (D/S)

48. I-94 EVIDENCING ADMITTANCE OF STUDENT IN F-1FOR DURATION OF STATUS

49. I-120 ID

50. ENDORSEMENT ON BACK OF I-20

51. RECEIPT RULE: Employee must already have work authorization
May only accept receipt for replacement document that was lost, stolen, or damaged
May not accept receipt for extension of EAD
Must see an original document within 90 days of hire (docket this date)

52. AUTHORIZING AN AGENT TO COMPLETE AN I-9
An employer may delegate the authority to complete an I-9
The employer retains the liability for errors
Select someone responsible
Provide written guidance and contact information

53. REHIRING No I-9 needed if employee is “continuing to be employed”
Leave of absence, disability, vacation, etc
Promotion or demotion
Strike, temporarily laid off
Disciplinary suspension
Transfer between one distinct unit of employer to another
I-9s may be reused if completed within 3 years of date of rehire (new I-9 recommended)

54. I-9 PENALTIES--FINES
Civil Money Penalties: $110 - $1,100 per I-9 for mistakes or omissions
Penalty: $275 - $11,000 for knowing hire or continuing to employ
(10% less for errors that occurred before September 29, 1999)

55. KNOWLEDGE
Actual knowledge includes knowledge of supervisors at company
Constructive knowledge includes circumstances where the company “should have known”

56. I-9 PENALTIES--FINES
Liability for employers’ technical or procedural paperwork errors limited
If the employer makes a good faith effort to comply with the I-9 verification requirements, no fines for mere technical or procedural errors
Does not apply if errors not corrected within 10 business days from the date INS notifies of errors
Does not apply if pattern and practice found
Applies to errors made after September 30, 1996

57. TIPS FOR CORRECTING I-9s
All corrections should be initialed and dated with date of correction
Do not use white-out
Do not obliterate information
Sample
Fictitious names on this form
Employee asked to correct incorrect date (date of birth had been inserted in space where date of completion belongs)

58. Date corrected by employee

59. I-9 PENALTIES--CRIMINAL
$3,000 per unauthorized alien and up to six months in jail for pattern and practice of employing unauthorized workers
Five years imprisonment for person who, during any 12-month period, knowingly hires at least 10 individuals with actual knowledge that the individuals are unlawful workers

60. OTHER PENALTIES Criminal liability for document fraud
Debarment from government contracts for “knowingly” employing an unauthorized worker

61. DISCRIMINATION ISSUES AND RECRUITING LANGUAGE

62. BASIC I-9 DISCRIMINATION VIOLATIONS
Document Abuse
Citizenship Status Discrimination (distinguished from National Origin Discrimination)
Retaliation

63. DOCUMENT ABUSE May not ask for more or different documents
May not refuse to accept valid documents presented
Should not specify which documents will be acceptable
Penalty: $110 - $1,100

64. CITIZENSHIP STATUS DISCRIMINATION
May not treat persons in the "PROTECTED CLASS" differently for purposes of hiring or firing.
Penalty: $2,000, $5,000, $10,000

65. “PROTECTED CLASS” INCLUDES
U.S. Citizens or Nationals
Permanent Residents
Refugees
Asylees
Temporary Residents under the legalization program (Special Agricultural Worker or amnesty applicant)

66. I-9 "PROTECTED CLASS" DOES NOT INCLUDE:
Non-Immigrants Such As:
- F-1
- J-1
- H-1
Asylum Applicants
Illegal Aliens

67. RECRUITING ISSUES How do I identify who needs a visa?
What questions can I ask?

68. OFFER GUIDELINES
Do not discriminate against members of “protected class”
Do not treat members of “protected class” differently from one another
Use written questionnaire rather than verbal questions

69. WHAT TO ASK: SAMPLE FORMAT #1
Are you legally authorized to work in the United States? yes ____ no _____
Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status?) yes ____ no _____

70. WHAT TO ASK: SAMPLE FORMAT #2
Are you one of the following:
Citizen or National of the United States,
Lawful Permanent Resident,
Refugee,
Asylee, or
Temporary Resident (does not include non-immigrant visas such as F-1, J-1, H-1,etc.) yes____ no____

71. NO DISCRIMINATION IF:
Request for additional documents not made with the intent to discriminate

72. NO DISCRIMINATION IF REQUIRED BY:
Law
Regulation
Executive Order
Government Contract
As Determined By Attorney General

73. ESTABLISH AN I-9 COMPLIANCE SYSTEM
Assess I-9 liability
Assess current I-9 procedures
Conduct I-9 training
Correct I-9s
Update I-9 procedures

74. ISSUES FOR I-9 POLICY What questions to ask in recruitment
When to complete I-9
Whether to photocopy documents
How to reverify I-9s
How to store and maintain I-9s
Moving I-9s to separate file upon termination
How to transfer I-9s when employee transfers within company

75. THANK YOU