I-9Compliance.com A service of the Pre-employ.com family of Companies (800) info@i-9compliance.com

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1 I-9Compliance.com A service of the Pre-employ.com family of Companies (800) info@i-9compliance.com

2 Welcome, It is important for employers to know that the U.S. Immigration and Customs Enforcement (ICE) agency has taken on an effort to aggressively audit and investigate companies for Form I-9 compliance. This concentrated effort, known as ICE s worksite enforcement strategy, was launched in While the strategy is designed to target and weed out employers who knowingly hire illegal workers, it is noteworthy that from fiscal year 2009 to July 2011, ICE initiated Form I-9 inspections that led to fines adding to nearly $7 million. More importantly, if your business were to face an ICE audit, neither intention nor simple error serves as an excuse. To emphasize, this means that making an unintentional mistake during the I-9 process can potentially lead to a fine for your company. Here s an example: According to an ICE news release, in November 2008, the agency initiated an audit of clothing retailer Abercrombie & Fitch s Michigan stores. The audit did not reveal any instances in which the merchant knowingly hired unauthorized aliens, but it did uncover several technology-related deficiencies in Abercrombie & Fitch's electronic I-9 verification system. In September 2010, the retailer reached a fine settlement of $1,047,110 for violations of the Immigration and Nationality Act related to an employer's obligation to verify the employment eligibility of its workers. Unfortunately, the employment eligibility verification process dictates some counterintuitive rules that can complicate procedures and lead employers to unintentionally violate immigration or even discrimination laws. For instance, did you know that an employer can break laws by (1) asking if the applicant can be legally employed in the USA before a specific moment in the hiring process, or (2) specifying what type of documentation the employee should submit? At I-9Compliance.com we dedicate ourselves to expertly managing the I-9 process for businesses so that you can have peace of mind in knowing that your I-9 compliance process is protected by professionals. In the following pages you ll learn about five easy-to-make mistakes that every employer should beware of. If you have any questions, please contact us at or visit for a FREE comprehensive analysis of your I-9 compliance process. I-9Compliance.com (800) info@pre-employ.com

3 Mistake 1 Not being aware of the specific time frame in which the process must be conducted Imagine this scenario: You are in charge of hiring someone for an important position. The position has been vacant for several weeks because you have been unable to find any candidates who possess the technical experience necessary for the job and your company s CEO is starting to express their anxiety about the vacancy. Finally, one lucky day the stars align and you receive a resume that seems perfect for the position. You interview the applicant and they turn out to be great. You have such a good feeling about this person that you want to offer them the position on the spot, but must wait to have approval from your CEO. Among the feelings of relief and pride that you feel for having discovered the new company superstar, you hear the applicant casually mention that they were born in a foreign country and recently moved to the United States. You immediately wonder if there is anything about this person s citizenship or immigration status that would prevent them from being able to legally work for your company. Will you commit an I-9 compliance violation if you ask? The answer is yes. Attorney Mike K. Ligorano, a Member of Norris, McLaughlin & Marcus, P.A. law firm, offers the following advice: Do not do the I-9 process nor ask if the person can be legally employed in the USA until after the job is offered. A helpful tip to keep in mind about the I-9 compliance process is to follow the three-day rule. After an applicant has been offered a position, make sure that section 1 of the I-9 form is completed by their first day of work for pay. Section 2 of the form must be completed no later than three business days after their first day of work. Common sense may also lead an employer to think that the three-day rule may preclude the need to go through the I- 9 process for an employee who has been hired for a very short period of time, such as two days for example. Unfortunately, that thinking would be wrong. According to the U. S. Citizenship and Immigration Services Handbook for Employees, there is no minimum time that employees must work for before you verify them. You must verify all new employees, no matter how long they will be working for you.

4 Mistake 2 Not keeping applicant records for the required time period Keeping a file with each employee s documentation while they work for you makes perfect sense, but how long after they no longer work for you are you required to hold on to their paperwork? Common sense may lead one to think that a company no longer needs to hold on to an employee s documentation after they stop working there, but that would be wrong. Document maintenance leads to another one of those tricky I-9 compliance rules: The employer must retain the employee s I-9 form either three years after the date of hire, or one year after the date employment is terminated, whichever is later. According to the U. S. Citizenship and Immigration Services Handbook for Employees, if an employer s action or inaction result in the alteration, loss, or erasure of electronic records, and the employer knew, or reasonably should have known, that the action or inaction could have that effect, the employers is in violation of section 274A(b)(3) of the INA (8 CFR Part 274a.2(g)(2)).

5 Mistake 3 Reverifying all existing employees Imagine another scenario: You just learned that a competitor was fined extensively for having illegal aliens on staff. A vendor who serves both companies told you that the competitor was blindsided by the investigation s findings. You have a system in place to alert you when it s time to reverify the documentation for your authorized aliens on staff, and although you don t think anyone has fallen through the cracks without you noticing, you want to reverify all existing employees just so that you can have peace of mind. How harmless could that be? After all, wouldn't doing so be a proactive move in case that your company is next in line for I-9 compliance auditing? Unfortunately, that would lead to non-compliance. Attorney Jessica Cook, an associate of Fisher & Phillips LLP, has this to say about the issue: Re-verify I-9 forms for employees with expiring work authorization. Create a tickler system of expiring work authorization and re-verify expiring work authorization before the expiration date. Do not re-verify permanent residence cards, driver s licenses or U.S. passports.

6 Mistake 4 Being cautious to the point of discrimination Learning about tricky, counterintuitive rules in the I-9 compliance process can reasonably lead concerned employers to be extra vigilant of their non-national workers and that can be most dangerous pitfall of all. To simplify things, some employers may decide to institute a policy of only hiring American citizens born in the United States. After all, that would make things easier, right? Wrong. Although some employers can have a policy of only hiring American-born citizens in specific instances that involve national security, for the most part, using a person s nationality or employment authorization status as a qualification for employment is employment discrimination. Additionally, if you choose to keep copies of an employee s documentation that show that they are an alien authorized to work in the United States, you better be sure to do it for all employees, regardless of their national origin or citizenship. Singling out any one person can lead to a violation of anti-discrimination laws. Attorney Mike K. Ligorano, a member of Norris, McLaughlin & Marcus, P.A. law firm, summarizes this valuable advice as follows: Treat everyone the same, regardless of accent, color or ethnicity. To do otherwise is discrimination punishable under federal law. Here s one example of a settlement agreement occurring as a result of a faulty I-9 procedure: In August 2011, the U.S. Department of Justice settled allegations of immigration-related employment discrimination against the Houston-based Summit Steel Fabricators company. Under the agreement, the company had to pay a civil penalty of $15,400 for allegations that the company engaged in discriminatory practices or patterns against non-citizens during the employment eligibility verification process. According to the department s findings, the company had a policy of requiring newly hired workers who were not U.S. citizens to present specific documentation, such as a permanent resident card or resident alien card, even if they had already presented other documents that were sufficient to establish their employment eligibility under federal law. U.S. citizens, by contrast, were not required to present any specific documents. Summit Steel also agreed to train its human resources personnel about employers responsibilities to avoid discrimination in the employment eligibility verification process, to produce Forms I-9 for inspection, and to provide periodic reports to the Department for three years. More information about this case can be found at

7 Mistake 5 Failing to take the process seriously In September 2010, Brian M. Moskowitz, special agent in charge of ICE s office of Homeland Security Investigations for Ohio and Michigan, said, "Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance." Furthermore, immigration legal experts wisely advise business owners to self-audit and actively educate themselves about the process: Attorney Michelle Valerio, with Colombo, Hurd & Brandt, PL, suggests, Conduct an internal I-9 audit on a regular basis and have an I-9 point person who provides consistent trainings. Eric A. Welter of Welter Law Firm, P.C., in Herndon, Va., said, My #1 best piece of advice is this: Print out and read the USCIS Handbook for Employers, which sets the correct procedures for I-9s. While this is valuable advice, the unfortunate reality is that business owners are tasked with the already-laborious task of running their businesses efficiently. A good-faith effort in I-9 compliance involves the following steps: Hiring lawyers to monitor and interpret how laws which can change frequently affect your business. Designating a company point person to take on the responsibility of managing the I-9 compliance process. Having that point person train every single one of your departments because it only takes one misunderstanding something as simple as having one person asking the wrong questions during the hiring process to lead a company down the road of non-compliance. Due to the constantly-evolving and highly technical nature of the employment eligibility verification process, devoting staff resources does not guarantee that your company will be safeguarded from falling into I-9 process pitfalls. We created this guide so that you can inform yourself about some of the counterintuitive rules that can unexpectedly place you in the realm of non-compliance. Free Analysis I-9Compliance.com is a service designed to give employers access to an easy, step-by-step, electronic system used for complying with the I-9 process. More importantly, I-9Compliance.com protects its users from becoming victims of the Form I-9 and E-verify system pitfalls. We manage the entire process for you and alert you any time a new or existing law affect your business. Contact us for a FREE, comprehensive analysis of your I-9 compliance process by calling (800) or visiting