Form I-9 Archives - The National Law Forum

DHS and DOJ Announce Joint Guidance on Electronic Form I-9 Processing

The Department of Homeland Security (DHS) and Department of Justice (DOJ) recently issued a fact sheet to guide employers on electronically completing, modifying, or retaining Form I-9. The joint guidance applies to employers using private sector commercial or proprietary I-9 software programs to complete Form I-9 or participate in E-Verify.

Requirements for Employers Using Electronic Form I-9 Software Programs

DHS permits completing Form I-9 electronically provided that the I-9 software complies with I-9 and E-Verify requirements. The DHS/DOJ fact sheet confirms that employers, rather than the software vendor, are responsible for ensuring compliance with these requirements. It provides the following key requirements and states that an I-9 software must:

Provide employees with access to the current acceptable version of Form I-9, I-9 instructions, and list of acceptable documents.
Allow employees to leave optional fields blank and accommodate employees with only one name.
Meet integrity, accuracy, security, and reliability requirements designed to prevent and detect unauthorized or accidental creation, alteration, or deletion of stored I-9s.
Comply with standards for electronic I-9 signatures.
Comply with general requirements applicable to I-9 documentation, retention, and audit trail requirements.
Ensure the electronic generation or storage of Form I-9 is inspected and monitored periodically.
Ensure the I-9 forms and all information fields on electronically retained I-9s are fully and readily accessible in the event of a government audit.

Specifically related to modifying and retaining Forms I-9 electronically, the fact sheet states that I-9 software must provide employees, employers, and preparers/ translators the option to make and record corrections to a previously completed I-9 form. Further, the software must uniquely identify each person who accesses, corrects, or changes an I-9 form. Modifications to stored I-9 forms must be properly annotated to include the date of access, the identity of the person making the change, and the nature of the change. Commercial or proprietary I-9 software may lack the functionality to comply with these guidelines regarding providing an audit trail and permitting corrections to completed I-9 records, so these are specific considerations employers should be aware of when assessing potential I-9 software for compliance.

Requirements for Employers Using Electronic Form I-9 Software Programs to Create E-Verify Cases

The DHS/DOJ fact sheet notes that employers who participate in E-Verify and access E-Verify through a software must:

Confirm that the software’s functionality allows employers to follow the requirements detailed in the E-Verify Memorandum of Understanding and DHS’s E-Verify guidance.
Refrain from creating new E-Verify cases due to corrections made to the previously completed I-9 if the employee received a prior “employment authorized” result. Depending on functionality, commercial or proprietary I-9 software may require completing a new I-9 instead of allowing a correction to the previously completed form.
Be able to delay creating E-Verify cases as instructed by E-Verify rules. For example, E-Verify instructs employers to postpone creating E-Verify cases for employees who have not yet received their Social Security numbers and for employees who show certain acceptable receipts for the Form I-9. The software’s functionality should permit employers to delay creating the E-Verify case in these scenarios.

Training for Employer Personnel Administering I-9 Software on Behalf of the Employer

The DHS/DOJ fact sheet also reminds employers to properly train personnel completing electronic Forms I-9 on the employer’s behalf. Key points include the following:

Employer personnel should be familiar with the employer’s procedures to complete Form I-9 or create an E-Verify case outside of the Form I-9 software program if, for example, the person completing the I-9 cannot use the I-9 software program or there is a software outage.
Employers should not pre-populate fields on electronic I-9 forms with employee information. An I-9 software may be part of the employer’s other HR-related systems and the system may initiate the I-9 verification process through impermissibility pre-populating the employee’s information on the electronic I-9.
The employer must not use auto-correct, use predictive text, or post-date an I-9 when completing an I-9 with an I-9 software.
The employer should not complete the I-9 on an employee’s behalf and must not change or update the employee’s citizenship or immigration status attestation. For corrections to Section 1, the process is the same as when completing a paper I-9 and changes or corrections to Section 1 must be made by the employee. The I-9 software must have the functionality to allow the employee to make corrections to a previously completed I-9 form.
The employer must not remove or add fields to Form I-9. An I-9 software that adds additional questions seeking information that is not requested by the I-9 form may violate this guidance.
Employers must permit preparers or translators to assist an employee in completing an electronic I-9.
Employers must permit employees to present any valid and acceptable documentation to establish identity and employment authorization, including acceptable receipts, and should not suggest specific documents for this purpose. Thus, an I-9 software should not notify the employer to, for example, request documentation to reverify an employee’s identity document or reverify a permanent resident card.
The fact sheet reminds employers to not impose unnecessary obstacles that make it more challenging for employees to start work or get paid, such as by requiring a Social Security number to onboard or by not paying an employee who can complete the Form I-9 but is still waiting for a Social Security number.

Given the significant penalties for non-compliance, employers should exercise thorough due diligence when evaluating I-9 software, considering compliance with DHS regulations alongside factors like cost, functionality, and interoperability with its other systems. Although government guidance has been minimal, the fact sheet provides some insight into the government’s stance on regulatory requirements for electronic I-9s and may be helpful to employers when selecting an I-9 software.

Available Options for Completing Form I-9 in Remote-Work Scenarios

The American Immigration Lawyer’s Association (AILA), through its Verification and Documentation Liaison Committee (“Verification Committee”) recently issued an FAQ compiling updated information related to employment verification (I-9) compliance requirements during the COVID-19 Pandemic.

The FAQ addresses the viable options for completing the Form I-9 in remote-work scenarios and the most current developments in each type of process. Below are the main takeaways:

Process 1: In-person New Employee and HR/Admin Document Review: HR/Admin timely reviews the employee’s identity and employment authorization documents in the employee’s physical presence. Where employers have fully returned to in-office operations, or where they are no longer maintaining COVID-19 precautions, they must complete an in-person review of Form I-9.

Process 2: “Remote Hire” In-Person New Employee & Employer Authorized Representative Document Review: This is the so-called “Remote Hire” process, typically used in situations of on-boarding and new remote employee. Note that this is still an in-person document review conducted by a third party designated by the employer who acts as the agent. Also note that this process is not restricted only to employees based at remote locations but can also be used in any situation. Since the employer bears the liability for the agent’s errors it is best practice for the employer to train and/or provide instructions to the agents as well as perform a detailed review upon receipt of the completed Form I-9.

Process 3: Limited Temporary Option: HR/Adm’s Electronic Document Review: The virtual review option was first implemented March 20, 2020, and has been extended multiple times. The current extension expires July 31, 2023. With this process, HR/Adm timely reviews the employee’s identity and employment authorization documents electronically, not in the employee’s physical presence, but via video link, fax, email, etc.

Who can benefit from this option? The U.S. Immigration and Custom Enforcement (ICE) confirmed to the Verification Committee the general rule in applying this option:

Before April 1, 2021, the temporary I-9 option was available if a business was operating 100% remotely as a result of the pandemic. If it was not, the in-person verification for Form I-9 was required. ICE acknowledged, however, that the Agency will handle audits and future enforcement on a case-by-case basis. Employers do not need to have 100% of their workforce working remotely to take advantage of the virtual option if the employer has a record supporting that the virtual review option was necessitated by the pandemic.
On or after April 1, 2021, the temporary virtual document review option is available, but only where the remote employment is a result of COVID-19-related precautions. Employers hiring “true remote” employees should conduct in-person reviews as they would have prior to the COVID-19 virtual review option being offered.

While virtual review provides a practical alternative to the in-person review, there are additional requirements in this process in order to maintain compliance:

Create and retain a written document that captures the remote onboarding and telework policy in place when this option is used for any Form I-9 created under this process;
Retain copies of the documents presented, as per the original guidance issued by ICE Note that security of sensitive personal information must be maintained, and the company should work with its information-security team regarding the transmission and/or capture of personal information in these situations;
Add “COVID-19” in the Additional Information field/box on Section 2 of the Form I-9;
Tell the employee that no later than three business days of cessation of this temporary electronic document review option or once the employee commences non-remote employment on a regular, consistent, or predictable basis (whichever is earlier), an in-person meeting and physical inspection of the document(s) will occur;
Within three business days of such a date, coordinate the in-person meeting and physical inspection of the document(s); and,
Add “documents physically examined,” date and initial in Section 2 Additional Information field/box, or to Section 3 of Form I-9, as appropriate.

Importantly, the virtual review process requires the employer to “perfect” the Form I-9 with an in-person meeting at a future date.

The Department of Homeland Security (DHS) is currently reviewing the regulatory framework for document review in considering making virtual review a permanent option for I-9 compliance. DHS published a Notice of Proposed Rulemaking in the Federal Register and, since November 2022, has been reviewing comments. Simultaneously, ICE has ramped up audits and investigations as the pandemic has waned. Therefore, employers should maintain a fluid line of communication with their attorneys and employees to avoid any compliance issues.

Article By Caterina Cappellari of Greenberg Traurig, LLP

For more immigration legal news, click here to visit the National Law Review.

DHS Guidelines Give Protection from Deportation to Undocumented Workers Who Report Labor Violations

If an employer hires undocumented workers, are they covered under the U.S. employment laws? Initially, employers must complete Form I-9s for all new employees and cannot hire workers who are unable to establish that they’re authorized to work. But once hired, the script flips and undocumented workers generally enjoy the same legal protections as the rest of the workforce (e.g., Title VII, FLSA, etc.). Undocumented workers, however, are often reluctant to make complaints to or cooperate in investigations with the EEOC, the Department of Labor, or other labor agencies, even when they have a legitimate beef with their employer. Why? It may be at least in part because they fear that they’ll be hauled into immigration court and deported. But now, the Biden administration has given those workers a possible safety valve.

Last month, the Department of Homeland Security released guidelines providing a process for undocumented workers to seek deferred action from removal (deportation) when they report a violation to a labor agency or cooperate in an agency investigation. In some circumstances, the individuals who utilize this process may also be eligible for temporary work authorization. Although each request for deferred action will be decided on a case-by-case basis, it’s clear that the purpose of this new process is to encourage undocumented workers to report labor violations and assist with agency investigations.

How Does the Process Work?

The U.S. Citizenship and Immigration Services (USCIS) will manage the process using a centralized intake system. If an undocumented worker makes a complaint to the EEOC, the DOL, or other labor agency, or assists the agency with an investigation, that worker can request deferred action from removal by submitting certain required documents. Among other things, the worker must submit his or her own statement setting forth the basis for the request, as well as a supporting “statement of interest” from the involved labor agency. According to the guidelines, the agency’s “statement of interest” should provide details about the nature of its investigation, how the worker may be helpful to that investigation, and how granting the worker’s request for deferred action would support the agency’s enforcement interests.

If the worker is already in removal proceedings or subject to an order of removal, the request for deferred action will be forwarded to ICE for determination. Otherwise, USCIS will adjudicate the request. Either way, USCIS or ICE will exercise its discretion on a case-by-case basis. In certain cases, the interested agency may also ask that the worker’s request be adjudicated on an expedited basis.

If an undocumented worker’s request is approved, the grant of deferred action will normally be good for two years, although it is subject to termination at any time. When submitting the request, the worker may also apply for temporary employment authorization on USCIS Form I-765. Approved applications for employment authorization, while not guaranteed, will typically allow the individual to work for the entire period of deferred action. Subsequent requests to extend the worker’s deferred action can be made if the labor agency continues to have an investigative or enforcement interest in the worker’s matter.

What’s the Practical Impact?

This is less clear. Will undocumented workers take advantage of this new process in significant numbers? The guidelines offer some potential protection, but the approval of an individual worker’s request is not automatic and, even if approved, the grant of deferred action is temporary. Notably, the guidelines do not provide any long-term path to lawful status. And, because the guidelines have been issued without Congressional or regulatory action, they are subject both to being challenged in the courts and to being revoked in two years if there’s a change in the White House. Will undocumented workers feel comfortable using this process in the face of all this uncertainty? Stay tuned.

Article By Keith Covington and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more immigration legal news, click here to visit the National Law Review.

To Reverify or Not: Form I-9 and Lawful Permanent Residents

On Friday, May 15, the U.S. Department of Homeland Security (DHS) issued a notice clarifying to employers that they cannot reverify Lawful Permanent Residents (LPRs) who presented evidence of permanent residence status that was unexpired at the time of the employee’s initial Form I-9, Employment Eligibility Verification, regardless of later expiration. While employers were never required to reverify LPRs, there has long lacked specific instruction on this, leading many involved in human resources across Pennsylvania and New Jersey to conduct reverifications of LPRs in violation of federal law.

What is Form I-9?

Form I-9, Employment Eligibility Verification (“Form I-9”), is used to:

verify the identity and employment authorization of individuals hired for employment in the United States.” All employers in the United States must are required to implement procedures for the use of Form I-9 that ensure its proper completion for each individual that is hired for employment in the United States—citizens and noncitizens alike.

Federal law requires employers to “allow employees to choose which document(s) they will present from the Lists of Acceptable Documents” that is included with Form I-9. As the DHS M-274, Handbook for Employers, notes, in “Section 1, an LPR may choose to present a List A document (such as Form I-551, Permanent Resident Card, commonly referred to as a Green Card) or a List B and C document combination (such as a state-issued driver’s license and unrestricted Social Security card).”

LPRs are issued a Form I-551, Permanent Resident Card (LPR Card) as evidence of permanent resident status. If an individual is an LPR and presents a valid LPR Card when completing Form I-9, the LPR Card is deemed a sufficient “List A” document, thereby rendering successful the employer’s verification of the individual’s identity and ability to work in the United States. An employee need not present any further evidence. Acceptable LPR Cards include:

Those issued from January 1977 to August 1989 that have no expiration date;
Currently unexpired, but with 10-year expiration dates; and
Currently unexpired, but with 2-year expiration dates.

To Reverify or Not to Reverify?

The DHS notice informs that employers who successfully complete the Form I-9 verification process with an LPR Card that either did not have an expiration date or was a 10- or 2-year LPR Card that was unexpired at the time of verification must not seek to reverify the employee in the future even if the LPR Card later expires.

However, when an individual that is an LPR presents the following to an employer during the Form I-9 verification process, it is necessary to reverify:

Expired LPR Card and Form I-797, Notice of Action (which is issued when an individual applies to renew an LPR Card), that indicates the LPR Card’s validity has been extended. Employers should consider these documents as acceptable “List C” evidence, requiring reverification at the end of the extension period. Note that the employee must still present a valid, unexpired “List B” document to satisfy the initial Form I-9 verification.
Form I-94 or Form I-94A, Arrival-Departure Record, containing an unexpired temporary I-551 stamp and a photograph of the individual. When presented, these documents are acceptable “List A” evidence. Employers must conduct a reverification no later than when the I-551 stamp expires, or one year after the issuance of Form I-94 or Form I-94A, Arrival-Departure Record, should the record not indicate an expiration date.
Current foreign passport with a photograph and either a temporary I-551 stamp or I-551 printed notation on a Machine-Readable Immigrant Visa. Additionally, if the current, foreign passport is, in the rare instance, endorsed with “CR-1,” rather than an I-551 stamp, the employer is reminded that the “CR-1” endorsement is the equivalent of an I-551 stamp. Employers must conduct a reverification when the I-551 stamp or I-551 printed notation on the Machine-Readable Immigrant Visa expires. If there is no expiration date listed, the reverification must occur no later than one year from the date that the I-551 was stamped or “CR-1” was endorsed in the foreign passport.

ARTICLE BY Raymond G. Lahoud at Norris McLaughlin P.A.

For more on employment verification, see the National Law Review Labor & Employment law section.

Breaking Federal Developments in Labor and Employment September 2017

Salary Test for Exempt Status Invalidated

Under the prior administration the DOL had issued amendments to certain exemptions from the overtime requirements of the Fair Labor Standards Act (“FLSA”), which would have dramatically increased the number of employees eligible for overtime pay to over 4 million workers within the first year of implementation. The amendments were to be effective on December 1, 2016, however their implementation was stayed by a federal judge last November, as reported in our November 2016 Client Alert.

The new regulations were to essentially double the salary threshold for employees who would be exempt from overtime payments, assuming they met one of the three exemptions, from $455 per week or $23,660 per year, to $913 per week or $47,476 per year. Under these regulations, even if employees performed duties that would otherwise indicate they were exempt from overtime, if they made less than $47,476 per year, their employers would have to pay them overtime regardless of their duties. Just last week, a federal judge in Texas invalidated the new regulations, and specifically found that, while a salary test was permissible, the minimum threshold of over 47K per year was too high, and in fact obviated the need for any other duties based analysis, which has always been at the heart of the executive, administrative, or professional exemptions.

Employer Tip

For the time being, employers can feel comfortable relying on the duties test to determine eligibility for overtime, however, the DOL has indicated that it is still looking at the minimum salary threshold, and employers should expect that threshold to increase from the current number of $23,660. Employers would be well advised to take a look at their currently classified exempt employees making between 24-35K per year to determine whether such employees truly meet the duties test, and whether such employees are being paid at appropriate levels.

EEO-1 Salary Reporting Requirements Blocked

The new EEO-1 forms with reporting information for 2017 were to have included salary information in addition to the usual reporting requirements. The EEOC was presumably intending to use such information to target companies for Equal Pay investigations and complaints. Reporting is still due using the EEO-1 forms in March 2018, but the OMB has just announced that the forms are not going to require the reporting of salary information by gender and other protected characteristics, so employers have a reprieve with respect to federal reporting requirements.

Employer Tip

Employers should be mindful that the state and federal equal pay laws are still applicable, and it is always a good idea to do a self-audit of comparative pay data based on gender, race, and other protected characteristics in order to ensure compliance with such laws. Please also refer back to our April 2017 Client Alert with respect to NY pay equity laws and the salary history ban that goes into effect next month for NY employers.

New I-9 Form in Effect September 18, 2017

Employers should be aware that a new I-9 form is going into effect on September 18th. The link to the new form can be found here.

For more Labor & Employment news go to The National Law Review

Employment Based Immigration: New Form I-9, Employment Eligibility Verification

On November 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”). Employers can continue to use the most recent version dated March 8, 2013 until January 22, 2017. By January 22, 2017, employers must use only the new version or face serious fines.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization using Form I-9.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals. The revised Form I-9 is easier to complete using a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each blank item, easy access to the full instructions, and an option to clear the form and start over.

Additionally, prompts have been added to ensure the information is entered correctly, and now employers can enter multiple preparers and translators. There is a dedicated area for including all additional information rather than having to add it in the margins. There is also a supplemental page for the preparer/translator. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers and may be used to streamline audit processes.

The instructions have been separated from the form, consistent with other USCIS forms, and include specific instructions for completing each field.

ARTICLE BY Elise S. Levasseur of Dickinson Wright PLLC

New Form I-9 Must Be Used By January 22, 2017

This week, the U.S. Citizenship and Immigration Services (USCIS) released a new version of its Form I-9, the Employment Eligibility Verification form. All U.S. employers must begin using the new Form I-9 after January 22, 2017.

Currently, U.S. Immigration and Customs Enforcement conducts over 3,000 I-9 employer audits annually, and immigration enforcement is anticipated to increase due to the Trump presidency. In January, Holland & Hart will host a webinar explaining the changes to the Form I-9 and discussing what immigration reforms employers should expect in a Trump presidency.

Form I-9 Changes

The new version of the Form I-9 includes some clarifications as well as some changes designed to make the form easier to fill out electronically. Completing the Form I-9 electronically will require downloading the latest version of Adobe Reader. Form I-9s completed electronically will still need to be printed and signed by the employee and employer agent by hand. One of the changes is in Section 1 which now asks for “other last names used” rather than “other names used.”

Enhancements for easier completion of the form include drop-down lists and calendars for entering dates, the addition of prompts to help ensure that information is entered properly, on-screen instructions for each field, and easy access to the full instructions. It also includes an option to clear the form and start over. Other changes you’ll find on the new I-9 include:

Question regarding whether a preparer or translator was used
Space to enter multiple preparers and translators
A supplemental page for the preparer/translator
Creation of a QR code once the Form I-9 is completed electronically
A field to enter additional information such as E-Verify confirmation numbers, termination dates and correction notes, and
Separating the full instructions from the form itself.

Reminder of I-9 Process

As you may know, the 1986 Immigration Reform and Control Act (IRCA), prohibits employers from hiring employees, including U.S. citizens, without first verifying their identity and checking that they have proper authorization to work in the United States. The Form I-9 ensures that you have completed this necessary verification for all new hires. USCIS provides the following useful graphic to show the proper timing and process for completing Form I-9s for each newly hired employee:

Labor, Chart

What You Need To Do

You have just over two months to switch to the new Form I-9, so it is best to put procedures in place now to make that switch for all new hires to ensure compliance.

ARTICLE BY Roger Y. Tsai of Holland & Hart LLP

DHS to Issue New I-9 Form Following Recent Penalties

Just when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat. First, the Department of Homeland Security (DHS) and the U.S. Department of Justice recently increased the penalties for I-9 violations. Second, DHS has announced that it will soon issue a new version of the Form I-9. These actions bring significant changes for employers.

Under the new fine schedule, employers face penalties such as the following:

I-9 paperwork violations: $216 – $2,156 per Form I-9
Knowingly employing unauthorized alien (first offense): $539 – $4,313 per violation
Knowingly employing unauthorized alien (second offense): $4,313 – $10,781 per violation
Knowingly employing unauthorized alien (third or more offenses): $6,469 – $21,563 per violation
E-verify employers – failure to inform DHS of continuing employment following final nonconfirmation: $751 – $1,502 per violation

The DOJ also increased the penalties for document abuse and discriminatory practices in addressing I-9 issues. Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee has already presented qualifying I-9 documents. This violates the I-9 rules, which require that the employer allow the employee to choose which document or documents to present from the I-9 List of Acceptable Documents. The employer then must review what is presented to confirm whether the document or documents meet the verification requirements.

Unfair immigration-related employment practices may occur when an employer treats job applicants and/or new hires differently based upon their immigration status while implementing I-9 procedures or addressing I-9 issues.

Penalties for document abuse and unfair immigration-related employment practices are now as follows:

Document abuse: $178 – $1,782 per violation
Unfair immigration-related employment practices (first offense): $445 –$3,563 per violation
Unfair immigration-related employment practices (second offense): $3,563 – $8,908 per violation
Unfair immigration-related employment practices (third or more offenses): $5,345 – $17,816 per violation

These new fine levels are effective as of August 1, 2016. During I-9 inspections, DHS’s Immigration and Customs Enforcement and DOJ’s Office of Special Counsel will apply these new penalties to violations that occurred after November 2, 2015. The increased penalties are a reminder of why I-9 compliance is so important. Employers should review their I-9 procedures and conduct periodic internal audits to best defend against the risk of I-9 penalties. For additional tips to achieve better I-9 compliance, as well as for updates on the government’s enforcement activities, please see our prior posts.

As to DHS’s announcement of yet another version of the I-9 form, there have been more than 10 different versions in the nearly 30 years during which the I-9 has been required. DHS expects to issue the newest version of the Form I-9 on or before November 22, 2016. DHS will allow employers to continue using the current version (issued in 2013) through January 21, 2017. Employers should use this two-month period to review and gain an understanding of the new Form I-9 before transitioning to it.

ARTICLE BY Anita M. Sorensen of Foley & Lardner LLP

Civil Penalties Nearly Double for Form I-9 Violations

Significantly Increase for Other Immigration-Related Violations

Due to the implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (“Inflation Adjustment Act”), higher fines and civil penalties have now gone into effect for assessments that occur on or after August 1, 2016. These higher penalties can be applied to violations that occurred after November 2, 2015, the day the President signed the Act into law.

The Inflation Adjustment Act will be implemented by multiple federal agencies that have authority to assess civil penalties. The following is a summary, by federal agency, of the penalties covering violations for the unlawful employment of immigrant workers; violations related to Forms I-9; immigration-related discriminatory employment practices; and violations of the H-1B, H-2A and H-2B temporary visa for foreign worker programs. The increases in many categories are substantial. The penalties for Form I-9 paperwork violations are increased by an eye-catching 96 percent.

Department of Homeland Security fines:

Department of Homeland Security Fines i-9 violations

Department of Justice fines:

Department of Justice Fines

Department of Labor fines:

Department of Labor Fines

The consequence of the above is that employers should continue to aggressively monitor their immigration programs for compliance or suffer the harsher sting of these increased fines. Given that the penalties for I-9 errors are practically doubled, it is more important than ever to ensure I-9s are completed timely, correctly and are periodically audited. Moreover, most I-9 violations are considered continuing violations until they are corrected.

ARTICLE BY Gregory A. Wald of Squire Patton Boggs (US) LLP

A New Judge is in Town to Rule on I-9 Violation Penalties

Last week Stacy Stiffel Paddack was announced as the newest Administrative Law Judge (ALJ) at the Office of the Chief Administrative Hearing Officer (OCAHO). Judge Paddack will rule on the proper penalty in immigration compliance (Form I-9 violations) cases brought by U.S. Immigration and Customs Enforcement (ICE). Welcome aboard, Judge Paddack.

The statutory range for I-9 violations is $110 – $1100 per defective Form I-9. In calculating the proposed penalty amount for I-9 violations, ICE divides the number of violations by the number of employees for which a Form I-9 should have been prepared to obtain a violation percentage. This percentage is used as a baseline fine amount, with deviations available depending on factors such as whether or not this is the employer’s first offense, size of the employer, and whether unauthorized aliens were working for the employer. ICE applies a mechanical calculation when determining the penalty amount and there is little discretion exercised benefitting the employer. ICE’s standard fine amounts are listed in the table below:

	Standard Fine Amount
Substantive Verification Violations	1st Offense $110 – $1100	2nd Offense $110 – $1100	3rd Offense + $110 – $1100
0% – 9%	$110	$550	$1,100
10% – 19%	$275	$650	$1,100
20% – 29%	$440	$750	$1,100
30% – 39%	$605	$850	$1,100
40% – 49%	$770	$950	$1,100
50% or more	$935	$1,100	$1,100

OCAHO is not bound by ICE’s methodology, and ALJs like Judge Paddack can consider factors not included in ICE’s chart when determining the proper penalty amount, such as ability to pay the proposed penalty and any deterrent effect of the proposed penalty, and can weigh the different factors unequally. A review of OCAHO decisions reveals that the final penalty amount ordered by OCAHO is often significantly lower than the figure on the ICE penalty chart.

ARTICLE BY

Scott T. Decker

Greenberg Traurig, LLP