Since the 1980s, employers have been required to verify that new employees are entitled to work in the United States. Enforcement of the verification laws had been lax, however, until a trend in recent years that began to show large increases in "immigration raids" and other government enforcement activity to remove unauthorized noncitizens from U.S. workplaces.
Verification enforcement exposes employers to serious criminal charges and heavy fines and penalties. At the same time, however, the statutes also impose liability on employers for discriminating on the basis of national origin or citizenship status. As with documentation violations, discrimination charges similarly can lead to fines, penalties, large awards of damages, litigation expense, unfavorable publicity, and other harmful effects on a business. It can be very difficult to avoid liability for documentation violations while at the same time avoiding liability under the discrimination provisions.
Immigration Enforcement: I-9 Compliance Handbook offers guidance from Ann Allott, an attorney who has spent years practicing, writing, and speaking on just this problem. She offers easily understood, step-by-step procedures, sample forms and notices, and reference materials to point employers through this difficult area of immigration and employment law. Additional material is contributed by Daniel Kowalski, editor-in-chief of Bender's Immigration Bulletin, and by Camille Griffin.
Chapter 1: About the Form I-9
1.01 Introduction to the Form I-9
1.02 What has Changed
1.03 When is the Employer Required to Complete the Form I-9?
1.04 Definition of Independent Contractors
Chapter 2: Acceptable Documentation
2.01 Filling out the I-9
Chapter 3: A Form I-9 Compliance System
3.01 The Importance of a System
3.02 Key Personnel
3.03 Before You Begin
3.04 How to Complete the Form I-9
3.05 Special Circumstances and the Form I-9
3.06 How NOT to Ask for Documents
3.07 Detecting Fraudulent Documents
3.08 What If the Employee Does Not Have the Correct Documents?
3.09 Section 3: Completed by Employer; Updating and Re-verifying
3.10 Checklist for Preparation and Maintenance of the Form I-9
3.11 Common Errors Committed in Preparing the Form I-9
3.12 How to Change the Name of an Employee
3.13 Note the Termination Date on the I-9
Chapter 4: Storing and Maintaining Documents
4.01 Requirement to Keep Documents
4.02 Paper Retention of Forms I-9
4.03 Electronic Storage of Documents
4.04 Microfilm or Microfiche
Chapter 5: Social Security Numbers and Verification Systems
5.01 What is a Social Security Account Number?
5.02 To Obtain a Social Security Number
5.03 Helpful Information Concerning Social Security Cards
5.04 Verification Systems
5.05 SSA Notice of Invalid Numbers
5.06 Company Policy
5.07 Other Social Security Matters
5.08 Another Government Program: IMAGE
Chapter 6: Discrimination and the Form I-9
6.01 Unfair Immigration-Related Employment Practices (Anti-discrimination Provisions)
6.02 Avoiding Discrimination Complaints
Chapter 7: Enforcement
7.01 Introduction
7.02 Criminal Prosecution
7.03 Constructive Knowledge
7.04 Sources
7.05 Civil Procedure and Enforcement
Chapter 8: The Compliance Plan
8.01 Protecting Your Business
8.02 Good Faith Compliance Under INA § 274A(e)(6)
8.03 Common Errors Committed in Preparing the Form I-9
8.04 Forms I-9 Requiring Maintenance
8.05 What to Do If ICE Contacts You
8.06 Instructions Concerning Which Employees May Talk to Federal Agents
Chapter 9: State Laws
9.01 State and Territorial Laws Concerning Employer Sanctions
9.02 Local Laws Concerning Employment of Unauthorized Aliens
Appendices
Appendix A-- Text of the key statute on unfair immigration-related employment practices, as discussed in Chapter 6.
Appendix B-- Several of the regulations that apply to I-9s. The information in brackets refers to when the original regulation and changes were published in the Federal Register.
Appendix C-- Blank Form I-9 (in English), Employment Eligibility Verification, with instructions and lists of acceptable documents.
Appendix D-- Blank Form I-9 (in Spanish), Employment Eligibility Verification, with instructions and lists of acceptable documents.
Appendix E-- USCIS Handbook for Employers, M-274, which explains the I-9.
Appendix F-- Examples of common errors made on Form I-9, as referenced in Chapter 3. There are 12 sample I-9s containing the common errors (which are explained in boxes).
Appendix G-- ``Fact Sheet'' issued in 2005 by U.S. Immigration and Customs Enforcement on the subject of electronic storage, as discussed in section 4.03.
Appendix H-- Examples of several documents that the government may send employers to investigate I-9 cases. Included are a Notice of Suspect Documents, a Notice of Unauthorized Aliens, two Notices of Inspection and a Second Notice of Inspection, two Subpoenas, a Notice of Intent to Fine, and a Notice of Intent to Fine, Amended. All of these are to be taken very seriously, and counsel should be notified immediately if you receive any of them so that a response can be made promptly and appropriately.
Appendix I-- President George W. Bush's Executive Order No. 13,465, which orders that federal contractors be required to use E-Verify.
Appendix J-- Explanation of the regulation requiring contractors to use E-Verify issued by U.S. Citizenship and Immigration Services.
Appendix K-- The complete regulations, including introductory explanatory information, requiring federal contractors and subcontractors to use E-Verify. These pages are from 73 Federal Register 67651 to 67705. The affected rules are at 48 C.F.R. §§ 2.101, 22.102-1, 22.1800 to 1803, 52.212-5, and 52.222-54.
Appendix L-- A set of frequently asked questions from April 2010 about the rule requiring federal contractors and subcontractors to use E-Verify.
Appendix M-- USCIS synopsis of Westat evaluation, released January 28, 2010.
Appendix N-- A notice describing E-Verify's ``Compliance Tracking and Monitoring System.''
Appendix O-- Press Release from March 17, 2010, on steps to improve use of E-Verify by employers.
Appendix P-- A fact sheet issued by DHS on March 18, 2010, on steps being taken to improve the use of E-Verify by employers.
Appendix Q-- Memorandum of Agreement Between U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, and Civil Rights Division, U.S. Department of Justice, Regarding Information Sharing and Case Referral.
Appendix R-- ``No-match'' rule (or ``Safe Harbor'') referred to in chapters 5 and 7, as set out by U.S. Citizenship and Immigration Services.
Appendix S-- 74 Federal Register 51447 et seq.: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission.
Appendix T-- Letter from Katherine A. Baldwin dated March 3, 2010, regarding how an employer should react after receiving a no-match letter from local authorities.
Appendix U-- Form used to open a case with the Office of Special Counsel for claims that someone committed an unfair immigration-related employment practice.
Appendix V-- Letter from Katherine Baldwin dated February 3, 2010, regarding how to react to a Notice of Suspect Documents.
Appendix W-- ICE Worksite Enforcement Fact Sheet, dated April 30, 2009.
Appendix X-- Form I-9 Inspection Overview dated November 19, 2009, prepared by ICE Worksite Enforcement Unit Office of Investigations.
Appendix Y-- An old memorandum, still in effect, written by Paul Virtue, the Acting Executive Commissioner for Programs of the agency then called the Immigration and Naturalization Service. It explains what should be considered a serious mistake in filling out an I-9, and what is only a ``procedural or technical'' one, which will be treated less severely.
Appendix Z-- Memo from Paul Virtue, explaining that in investigations about I-9s, the agency might not have to give three days for someone to respond to a subpoena. However, he says, giving three days is usually good policy, unless the situation is so urgent that a search warrant should be used.
Ann Allott
Ann Allott practices immigration law in her own law firm established in 1976 in the Denver suburb of Centennial, Colorado, serving the Rocky Mountain region. She received her J.D. from the University of Colorado School of Law. She joined the American Immigration Lawyers Association (AILA) in 1977 and has participated in many phases of its activities. Ms. Allott's recently updated handbook, Employer Handbook on the Hiring of Authorized Workers, has been a useful tool for employers. She was the recipient of the AILA Colorado Chapter's Career Service Award for her contributions to immigration law and years of exemplary service to AILA. She was featured in 5280 Magazine as one of Denver?s top lawyers and has been listed in Super Lawyers and Best Lawyers in America for many years. In 1998, she received the Mack Award for pro bono services concerning naturalization issues.
Allott Immigration Law Firm
2305 East Arapahoe Road, Suite 100,
Centennial, CO 80122
303-797-8055
www.allott.com
Daniel M. Kowalski
Daniel M. Kowalski is an attorney in Austin, Texas, who has been practicing immigration law since 1985. He is the Editor-in-Chief of the semi-monthly technical journal Bender's Immigration Bulletin, published by LexisNexis, and is the Online Editor of the free daily website Bender's Immigration Bulletin -- Daily Edition, www.bibdaily.com. Contact him through www.cenizo.com.
Camille Griffin
Camille Griffin is a legal and administrative assistant at the Allott Immigration Law Firm in Centennial, Colorado. She joined the firm in 2005 after an extensive career in human resources and employee training positions.
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