Articles Posted in I-9

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On March 20, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of flexibility in rules related to Form I-9  Employment Eligibility Verification compliance due to COVID-19. The original guidance was set to expire on May 19. Due to the continued precautions related to COVID-19, DHS has extended this policy for an additional 30 days.

For more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9, please see the original guidance. The original guidance including eligibility requirements can be found here.

This provision only applies to employers and workplaces that are operating remotely.

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U.S Citizenship and Immigration Services (USCIS) announced on May 6, 2020, that it recently migrated to Microsoft 365 and that, as of April 24, it is unable to receive and answer emails sent to and

Per USCIS’s notice, if you sent an email to these addresses on or after April 24 and have not received a response within 48 hours, please resend your message to the email addresses below:

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E-Verify, the U.S. Department of Homeland Security website that allows businesses to determine the eligibility of their employees to work in the United States, has resumed operations following the temporary re-opening of the government. All E-Verify features and services are now available.  Employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was unavailable.

Although E-Verify Form I-9 support representatives were unavailable during the government shutdown and E-Verify service was disrupted, employers were still required to complete and retain Form I-9, Employment Eligibility Verification, for every person hired for employment in the U.S. during that time, as long as the person works for wages or other remuneration.

Due to the large volume of accumulated cases, delayed processing times are expected. Longer than normal delays and response times for E-Verify Support requests are also expected.

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Law360 Reports that the Seaboard Corporation agreed to pay $750,000 to U.S. Immigration and Customs Enforcement  (ICE) and $256,000 to the Oklahoma General’s Office to resolve claims that their Oklahoma based pork production plant hired unauthorized immigrant workers. According to Law360, for the past six years ICE has been investigating allegations that the Seaboard plant employed workers who did not have proper work authorization and had not completed the required employee eligibility forms. ICE also investigated allegations that the plant improperly submitted health care claims from employees on private health insurance to the Oklahoma Medicaid Program. As part of the settlement, Seaboard did not admit any wrongdoing. The settlement was handled out of court.

According to ICE, under federal law, employers are required to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9. A notice of inspection alerts business owners that ICE is going to audit their hiring records to determine whether or not they are in compliance with the law. Employers are required to produce their company’s I-9s within three business days, after which ICE will conduct an inspection for compliance. If I-9 inspections reveal that business are knowingly violating the law, civil fines and possible criminal prosecution follow.

Since January 2018 ICE served more 5,200 I-9 audit notices to businesses across the U.S. In 2017, ICE conducted 1,360 I-9 audits and in the same year businesses were ordered to pay $97.6 million in judicial forfeiture, fines and restitution and $7.8 million in civil fines.

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I-9 and E-Verify compliance enthusiasts report a noteworthy trend in recent cases brought to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Many of the recent cases in which OSC has reached settlements with employers for work authorization noncompliance were initiated by a referral from USCIS’s Verification Division Monitoring and Compliance Branch (M & C Branch).

The E-Verify Statute requires that Department of Homeland Security (DHS) ensures the security of the E-Verify System. The authority to monitor and provide oversight is based on Section 404(d) of the E-Verify statute and the Memorandum of Understanding which E-Verify employers are required to enter into with DHS.

The M & C Branch describes their mission as overseeing the usage of E-Verify and detecting and reducing misuse with the responsibility of protecting the integrity of the E-Verify Program. In addition to acting as a customer service center for confused or novice E-Verify employer-participants, M & C Branch monitors E-Verify system usage to identify potentially noncompliant employer-participants.

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On March 11, 2014, the Office of the Chief Administrative Hearing Officer (OCAHO) laid down yet another hefty fine for I-9 violations. OCAHO found that M&D Masonry, Inc., a Georgia construction contractor, was liable for $228,000 in I-9 penalty fines. The case discusses several notable points that U.S. employers should be aware of.

(1) ICE can initiate an investigation after reading a disparaging newspaper article about the employer.

ICE served a Notice of Inspection after reading in the Atlanta Journal Constitution an article entitled “Illegal Hiring for Airport Construction,” which quotes an M&D foreman saying that M&D employs undocumented workers. M&D argued that ICE cannot serve a Notice of Inspection based on hearsay in an article without first investigating the article itself. The OCAHO rejected M&D’s argument because M&D presented no legal authority and stated that it does not have the authority to direct ICE’s choices of businesses to inspect.

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On February 18, 2014, unofficial minutes were published from a November 19, 2013 meeting with USCIS and ICE regarding Form I-9. One of the most important matters discussed in the meeting was the inability of an employee to provide his or her I-94 number on the first day of employment due to technical issues within the CBP’s online I-94 system. USCIS rejected suggestions that would allow for employment without providing the I-94 number (e.g., implementing a procedure comparable to the Receipt Rule used in Section 2). USCIS stated that adopting such suggestions would constitute rulemaking. USCIS instead relied heavily on CBP’s statement that it neither has nor ever had glitches in its system. USCIS emphasized the regulation that if the employee’s I-94 number is required to complete Section 1 and the number is not known, then the employee cannot work for pay as the Form I-9 cannot be completed. This also means that the employer cannot open an E-Verify case for that individual.

A second important issue discussed was whether birth certificates issued by hospitals are acceptable List C documents. The Form I-9 Manual (M-274) reads that only birth certificates issued by government authorities are acceptable. USCIS’s I-9 Central guidance on the matter states that USCIS cannot comment on state law or whether a hospital may have the authority to issue birth certificates under that state law. USCIS was asked revise and clarify the guidance to recognize that state laws may have changed in the decades between birth certificate issuance and presentation to complete the Form I-9. USCIS refused this suggestion and in response repeated the I-9 Central guidance language on the issue.

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Recently blogs and the media have focused in the increase of ICE I-9 audits of U.S. employers. Meanwhile, many companies remain unaware that the Justice Department’s Office of Special Counsel (OSC) is another key player in ensuring I-9 compliance. OSC falls within the Justice Department’s Civil Rights Division and investigates discrimination charges alleging immigration-related violations, including the way an employer has managed its I-9 and E-Verify procedures.

Charges can be filed with OSC by federal agencies such as USCIS or the injured party (e.g., employees, former employees, and job applicants) within 180 days of the alleged act of discrimination. OSC has 210 days to investigate. During the final 90-day period, OSC and/or the injured party can file an administrative complaint against the employer. Complaints are then tried before an Administrative Law Judge.

In FY2012, OSC made 192 informal phone “interventions” with employers. Sometimes the phone call was all it took to resolve the charges. Other times, an actual investigation was deemed necessary, which means that OSC conducted a more formal inquiry. This included contacting the employer in writing and requesting a review of certain documents. When the charges had merit, OSC filed an official complaint against the employer.

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In U.S. v. Occupational Resource Management, Inc., OCAHO addresses key issues in the adjudication of I-9 violations allegations, 10 OCAHO no. 1166 (2013). We discuss below two of these important matters and how they emphasize the importance of employers’ use of E-Verify.

1) Constructive knowledge

Federal regulations prohibit hiring a foreign national worker knowing that he or she is unauthorized to work in the United States. Regulations define “knowing” as including both actual and constructive knowledge. However, OCAHO admits in Occupational Resource Management (ORM), that its “case law respecting constructive knowledge has not been fully developed.” On one hand, OCAHO case law does show that an employer cannot cultivate “conscious disregard” or “deliberate ignorance” with regards to employees’ employment eligibility. Generally, when an employer receives specific information that casts doubt on an employee’s work authorization and continues to employ the individual without taking adequate steps to reverify his or her employment eligibility, OCAHO may find the employer had constructive knowledge.

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OCAHO (Office of the Chief Administrative Hearing Officer) is responsible for the general supervision and management of Administrative Law Judges who preside over hearings related to the Immigration and Nationality Act (INA). OCAHO was a particularly active throughout 2013 issuing decisions on I-9 related cases. (This is no surprise considering the increasing number of federal I-9 audits.)

One of these cases was U.S. v. Super 8 Motel and Villella Italian Restaurant, 10 OCAHO no. 1191 (2013). Super 8 sheds light on the OCAHO’s current construction of OCAHO case law, INA, and the Virtue Memorandum (an INS memorandum issued by Paul W. Virtue that addresses I-9 compliance). Its dicta and holding are particularly interesting to any employer who wants to ensure I-9 compliance.

First, OCAHO reinforces its established belief that attaching photographs of documents to an incomplete Form I-9 does not constitute substantial compliance. In several instances, a Super 8 employee failed to complete Section 1 and/or Super 8 erroneously completed Section 2. OCAHO rejected Super 8’s argument that those errors were cured by the attachment of photocopied documents.

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