By Agnna Varinia Guzman
Associate at WHGC  

Introduction

• In June 2012, U.S. Immigration and Customs Enforcement (ICE) subjected more than 500 U.S. companies to I-9 inspections as part of its continuing agenda to enforce immigration laws nationwide. As part of an I-9 inspection, ICE routinely reviews the Form I-9s for all of the current and terminated employees for "paperwork violations".

  A U.S. company can suffer heavy penalties and fines based on I-9 paperwork violations. During the first half of this year, there were multiple major U.S. companies who were reported to have forfeited up to $2 million for having improperly documented Form I-9s. A recent trend is that 1-9 inspections have been directed towards U.S. companies deemed critical to the national infrastructure of our country. Indeed, it is strongly advised for all U.S. companies, small and large, to take a pre-emptive approach in properly preparing their Form I-9s in place of a costly ICE investigation. With I-9 inspections rising, it is prudent for U.S. companies to consider retaining immigration counsel with I-9 expertise.

  The Form I-9 is usually treated by U.S. companies as administrative paperwork in the hiring process of an employee. In practice, however, the Form I-9 is more often than not improperly completed by U.S. companies who believe that they are in compliance with immigration laws. Managerial and human resources personnel within these companies often express surprise or outright shock when they realize that not one of their Form I-9s have passed an I-9 audit. This article is intended to convey tips and techniques for proper completion of a Form I-9 in order to prevent paperwork violations by U.S. companies when confronted by an I-9 inspection.

Immigration Reform and Control Act of 1986

• The enactment of the Immigration Reform and Control Act (IRCA) ^[1] on November 6, 1986 required U.S. employers to verify the employment eligibility and identity of their employees. Furthermore, Section 274A(b) of the Immigration and Nationality Act^[2] requires U.S. companies to verify the employment eligibility and identity of all individuals hired in the U.S. after the passage of IRCA. The Employment Eligibility Verification Form (Form I-9)^[3] is the means of documenting this verification. Guidance on the Form I-9 by the U.S. Department of Homeland Security (DHS) is available through Form M-274, Handbook for Employers.^[4] The tips and techniques described below are outlined in greater detail in the handbook.

Section 1 - Employee Information and Verification

• The most significant feature is that only an employee may complete Section 1 of the Form I-9. U.S. employers must refrain from completing this part of the Form I-9, even when errors have been made by the employee. If English is not the native language of the employee, then another individual serving as a preparer and/or translator may fill in this section for the employee. The preparer and/or translator must complete the preparer/translator certification section below Section 1. However, the preparer and/or translator must not be the employer's authorized representative. To rectify any discrepancies in Section 1, the employee must cross-out the incorrect information, and write in his or her initials, the current date and the accurate biographic data.

  • A. Timely Completion of Section 1
    Another important aspect of Section 1 is that an employee must complete it prior to or on the first day of employment. Timely completion is documented in the employee's signature date which must reflect the same date as the hire date in Section 2 of the Form I-9. Ask the employee to write the current date if the signature date is missing on the Form I-9.

  • B. Most Common Paperwork Violations in Section 1
    Common paperwork violations in Section 1 are the listing of a post office box instead of a street address, the date of birth not in the right order of month/day/year, a missing social security number or an incomplete or incorrect citizenship attestation. For the citizenship attestation box, it is important that lawful permanent residents indicate their alien number and that temporary nonimmigrants write in the document number and expiration date for either their Form I-94 Card or employment authorization document (EAD) card.

Section 2 - Employer Review and Verification

• Section 1 must be completed by the U.S. employer, authorized representative or a notary public. This section requires a U.S. company to review the original documents presented by an employee and record them on the Form I-9 by the employee's third day of employment.

  • A. List of Acceptable Documents
    A critical distinction of Section 2 is that a U.S. employer can not mandate which documents are to be presented by an employee. However, the List of Acceptable Documents attached to the Form I-9 can be given to an employee as guidance on providing the proper documents to establish identity and employment eligibility at the time of hire. Only one document from List A (e.g., U.S. passport, Permanent Resident Card, foreign passport with Form I-94 card, EAD card) is needed to prove both employment eligibility and identity. If an employee cannot present a document from List A, then the employee must provide a document from List B (e.g., driver's license) and a document from List C (e.g., Social Security Card, U.S. birth certificate).

  • B. Paperwork Violations in Lists A, B and C
    A major paperwork violation occurs when a U.S. employer has completed all three lists (Lists A, B and C) in Section 2. In this case, the unnecessary information must be crossed-out, initialed and dated by the U.S. employer. If List A is properly completed, the information in Lists B and C are not needed. Conversely, the information in Lists B and C are required when List A is not applicable. Also typical is when List B or List C has missing or incorrect information. For missing information, the U.S. employer must write in the biographic data as soon as possible. Incorrect information must be crossed-out, initialed and dated, with the proper information written in the appropriate lines.

    All too often, U.S. employers overlook or misinterpret the headings of document title, issuing authority, document number and expiration date that are required for Lists A, B and C. Even the most frequently presented documents for employment eligibility verification are not correctly recorded on the Form I-9.

    A U.S. passport should have the document title "U.S. passport", an issuing authority of "U.S. Department of State", with the document number being the U.S. passport number and the expiration date listed in the U.S. passport. A Form I-9 for a lawful permanent resident who presents a "Green Card" should reflect a document title of "Permanent Resident Card" or "Conditional Resident Card" or "Resident Alien Card" depending on the version presented by an employee, an issuing authority of "DHS/USCIS" or "DOJ/INS" (for the Resident Alien Card), with the document number being the individual's alien number and the expiration date of the Green Card.

    It is crucial to understand that employees who present a valid U.S. passport or Green Card do not need to undergo reverification in Section 3 when their documents expire. Although the U.S. passport or Green Card itself may expire, the underlying status of U.S. citizenship and lawful permanent residency is indefinite.

    Similarly, when an employee presents an identity document from List B such as a current driver's license, it must not be reverified in Section 3 of the Form I-9. Identity is only verified once. In Section 2, a driver's license would state "Driver's License" as the document title, an issuing authority of "State DMV" (i.e., CA DMV for a California-issued license), with the driver's license number as the document number and the expiration date of the driver's license.

    Popular List C documents are the Social Security Card and a U.S. birth certificate. On a Form I-9, the document title must be "Social Security Card", an issuing authority of "Social Security Administration" or "SSA", with the social security number as the document number. A U.S. birth certificate would show a document title of "Birth Certificate", an issuing authority reflecting the government agency that produced the birth certificate, with the document number being a birth certificate number (if any). Since the Social Security Card and U.S. birth certificate do not expire, "N/A" can be written as the expiration date.

  • C. Other Paperwork Violations in Section 2
    While the majority of paperwork violations on a Form I-9 are in Lists A, B and C, the remaining portion of Section 2 also experience numerous mistakes. Some include the employee's hire date missing from the Certification box, a blank title for the authorized representative, an incomplete business name and address, and an employer's signature date that is not within three days of the employee's hire date. Information must be written in immediately if it was missing on the Form I-9. Inaccurate information must be rectified by a cross-out, initials of the writer, dated, and the accurate information written in on the Form I-9.

Section 3 - Updating and Reverification

• Section 3 of the Form I-9 requires reverification of an employee's employment eligibility by the U.S. employer. Reverification typically occurs when an employee has a new name or is rehired by the same employer. A new name is regularly associated with women who change their last name due to a change in marital status. The U.S. employer only needs to state the new name in the appropriate line, and sign and date Section 3.

  • A. Reverification of Rehires
    For a rehire, a U.S. employer must list the date of rehire, indicate the document title, number and expiration date of the employment eligibility document (List A or List C) presented upon rehire, and sign and date Section 3 on the Form I-9.

    Section 3 of an employee's original Form I-9 may be used for reverification if the hire date on that form is within three years of the employee's date of rehire. As an alternative option, a U.S. employer may also utilize a new Form I-9 with the employee's name in Section 1, and the completed information, signature and date in Section 3. The original Form I-9 and the new Form I-9 must be maintained together.

  • B. Reverification of Temporary Employment Authorization
    Reverification is also required when an employee's temporary employment authorization will be expiring. U.S. employers must perform reverification of an employee's employment eligibility no later than the expiration date of the temporary employment authorization. The document title, number and expiration date must be listed in Section 3 along with the signature and date of the U.S. employer, authorized representative or notary public.

    Reverification also applies when the employee presents a temporary receipt for the application of a document on the List of Acceptable Documents (e.g., receipt for a new or duplicate Social Security Card). The document title, number and expiration date (if any) of the temporary receipt will need to be written in Section 3, and the signature and date must be included. Once a reasonable period of time has been given to the employee, he or she must provide the actual employment eligibility document (e.g., original Social Security Card) to maintain employment with the U.S. company.

  • C. Employment Eligibility Document for Reverification
    It must be noted that as in verification for Section 2, an employee decides which employment eligibility documents to present to the U.S. employer for continued employment. It is not unusual for an individual who has been in lawful temporary nonimmigrant status to be granted lawful permanent residency. In this circumstance, the Green Card becomes the proper employment eligibility document used for reverification purposes.

Final Tips and Techniques

• Two final comments are worth noting for the proper completion of a Form I-9. First, always use straight lines to cross-out information that is inaccurate. Any corrections to the Form I-9 must neither be erased nor should white-out be used. Unnecessary markings, such as scribbles to hide incorrect information, are unacceptable..

  Second, there is a common perception that any version of the Form I-9 is acceptable. This is not true. Rather, U.S. employers are required to use the valid version of the Form I-9 at the time of the employee's hire date. The current version is available to the public.^[5] For earlier versions of the Form I-9, please contact your immigration counsel.

Conclusion

• Paperwork violations can be both prevented and rectified when considerable attention is paid to the above-referenced tips and techniques. Why incur penalties and fines of paperwork violations when they can be easily prevented with a relatively small investment of time and effort? U.S. employers can be significantly benefited by becoming very familiar with the Handbook for Employers. Only with careful preparation and internal review of Form I-9s will U.S. companies be able to prevent paperwork violations.

  Furthermore, with the number of I-9 inspections on the rise, it behooves U.S. companies to retain immigration counsel with I-9 expertise to conduct an internal I-9 audit. This is particularly true in states with large immigrant populations, such as California and Texas. An immigration attorney is also invaluable in preparing U.S. companies for I-9 inspections by ICE. For further information, do not hesitate to contact WHGC, PLC for assistance with an I-9 audit or inspection.

Agnna Varinia Guzman is an Associate of the Immigration and Employment Practice Group at the Newport Beach office of WHGC, PLC. Ms. Guzman and her fellow attorneys advise immigration clients on I-9 audits and represent U.S. companies with ICE inspections.

[1] Pub. L. 99-603 (Nov. 6, 1986).

[2] Immigration and Nationality Act § 274A (b) as codified in 8 U.S.C. §1324a (b).

[3] 8 C.F.R. §274a.2

[4] Form M-274, Handbook for Employers, Instructions for Completing Form I-9 (Employment Eligibility Verification Form), version 06/01/11, available at http://www.uscis.gov/portal/site/uscis. Click on Forms, scroll down to Employment Eligibility Verification and click on the link.

[5] Form I-9 (08/07/2009) is available at http://www.uscis.gov/portal/site/uscis. Click on Forms, scroll down to Employment Eligibility Verification and click on the link. A Form I-9 showing a date of 02/02/09 is also acceptable at this time.