Hi, I am Jennifer Pawlak. My job is to assist employers with I-9 compliance. I-9 is the employment verification and eligibility form that everybody fills out when you start a job.
So what I wanted to do today is give you a brief overview of the I-9, if it’s been a second since you’ve filled one out, or dealt with one, or had an issue. And then I’ll talk a little bit more about what’s happening in I-9 enforcement. Enforcement is really the big word right now for I-9s.
Here we go. So this is what it looks like. It’s a two page form. It gets updated every once and a while. You’ll see that it looks like it’s expiring. Even if you have an expired form, you don’t have to redo them. The government reissues I-9s every once and a while. There’s not a new one coming for a bit, although they like to surprise us with that.
As I mentioned, I-9 is used for verifying the identity and employment authorizations of individuals hired for employment in the United States, this includes Puerto Rico and territories. Created in 1986, pursuant to IRCA, it’s used by all employers with one or more employees.
Every employee hired after November 6th, 1986, on or after, is required to have an I-9 on file. You may have people that were hired prior to then, because of long … We’re getting into the timeframe where we might not have that anymore, with retirements. But you may have people who don’t have an I-9, and that’s okay. But everybody else should. And just to hammer that point home, every single person. The CEO has to have one, anybody who’s on your payroll. The people that don’t need one: incidental workers, babysitters. I don’t think you employ babysitters. But in your own personal home you don’t have to have an I-9 for a babysitter.
There are four classifications on the I-9. First is citizen of the United States, second we have non-citizen national. I’ll tell you what that means in a second. Lawful permanent resident, and an alien authorized to work.
So first is US citizen. That’s pretty basic. It’s a citizen by birth or by naturalization. A non-citizen national … I’m assuming no one’s ever going to have a non-citizen national working for them, but you may. It is, as it says here, American Samoans, people related to American Samoans, certain children of citizens born abroad. Non-citizen national is born abroad, sorry. So it’s very, very narrow, especially on this side of the county. We don’t see that a lot. But if you do, please let me know, because that’s cool.
Lawful permanent resident, we also call them green card holders. And this is what the current green card looks like. It’s the size of a driver’s license. It’s not really that size. They try to include new security features, and so they’re updating it often. The USCIS website, the government’s website, will always have the most current version up, so you can see what it looks like. They also have old forms, so you can see what that used to look like. You will notice that there is an expiration date on the card, that that just means the card itself is expired. Permanent residents does not ever expire.
And the last one is an alien authorized to work, so students, someone you’ve filed a non-immigrant petition for. You may have people that are on H1B Visas. Some teachers come in on J1s. Some are extraordinary abilities. There’s a whole alphabet soup of immigration statuses that someone can have that’s a non-immigrant. Refugees and asylees, these happen. You see a lot of refugees and asylees. And then, last, certain spouses of other non-immigrants and immigrants. Sometimes, if your spouse is going through a permanent resident’s process and you’re part of that, or a non-immigrant visa, you have work authorization as well.
So how? Very basic. The employee has to complete the I-9 on day one. There’s no leeway with that. Day one, they come in, they fill out their I-9. However, section two has to be completed within three days. And, contrary to math, what that really means is start counting the next day. So if an employee starts on Monday, you have to have the I-9 completed by Thursday, the employer section. And that means looking at the documents, filling it out, signing it, all of that.
You are not allowed to request certain documents, particular documents. I know it’s really easy and … Excuse me. Everyone falls into the, say, “Oh, just bring me your passport or your social and your driver’s license.” You really can’t say that. Those are the most common. Probably 95% of all I-9s are completed with a passport, or driver’s license and social. But that is considered discrimination. So just hand them the form. There’s a nice little list on the back that says you either bring one from column A, or one from B and C.
You must physically review the documents. You have to hold it in your hands, turn it over, look at it, flip through the passport, bend it, whatever you need to do. It has to be done in person. I know a lot of times we have remote workers, or people working at an offsite location. Somebody still has to review those documents in person. The easiest way to do this, and especially for schools in districts that aren’t multi-national, and with someone in California, although maybe you do, is to have them just come into the office and do it, unless you’ve got somebody onsite who’s really a good person at doing that.
It’s just easier to have it very central, and have one person doing the review, so that at least you’re consistent. And it has to be in its original form as well. You can’t review a copy. You can’t review a receipt. There’s a very narrow rule on when you can accept a receipt, and that is basically when something has been lost or stolen. And it’s the official receipt from that agency.
All documents have to be unexpired. You may remember, probably 10 years ago, you could use an expired passport, but that’s no longer the case. Everything has to be valid on the day that it’s presented. However, a future expiration date is not a reason to not hire somebody. So I use the example here of an EAD. That’s an Employment Authorization Document used by non-immigrants for work authorization. If they come to you today, May 9th, and say, “Here’s my EAD,” and you’ve hired them and all this stuff, and they’re starting today, and it expires July 15th, that kind of stinks for you, but you still cannot refuse them employment based solely on that.
So just, again, to reiterate. Your responsibility is to review the documents in person. You’re not required to be a document expert. And I know it’s easy to get hung up on that, because you think, well … I mean, you hear all about illegal immigration. Is this a real driver’s license? Is it a real social security card? You have to do your best. The government doesn’t expect you to be an immigration expert. Just make sure that the photo looks like the person, and that the names match.
So that’s the basics of what the I-9 is, and how to fill it out, and when it needs to be done. The other side of IRCA was preventing immigration related discrimination. And you might be surprised at what the government considers discrimination, or you might not.
Over documentation. So your employee comes in and they say, “Here’s my passport, here’s my driver’s license, here’s my social security card.” And you’re like, “Great, I’ll write them all down.” No. Don’t write them all down. They have to choose which one they’re going to use. Now, if they give you a document that’s not valid, or is expired, you can say, “I need to see a different document.” But putting too many documents on the I-9 is considered a form of discrimination. It’s because there’s lots of cases that have been proven to say that certain classes of citizens have been asked to provide additional documentation, specifically permanent residents.
So they have a green card, but what they show you is their driver’s license and their unrestricted social security card. That’s perfectly fine. They’re allowed to do that. As long as those documents match up, you can use those. So some employers have said, “I saw you checked the box for permanent resident. Where’s your PR card? Where’s your green card?” And that’s not okay.
And so the rule of more is better than less is not the case here. Again, requesting specific documents from people, like I mentioned, especially about permanent residents. That’s actually the biggest class of people that get illegally requested documents a lot, because everybody assumes. I mean, you do technically have to carry your card on you, but you don’t have to use that for identification.
Refusing to hire anyone except US citizens, unless required by a federal contract. A lot of cases have involved people saying, “Well, it’s just easier if I hire US citizens.” I mean, you still have to do an I-9, so that doesn’t get you out of that requirement. You can have a policy of not supporting visa applications and sponsorship, that’s fine. But you can’t refuse to hire somebody if they’re work authorized. So any questions about that. Yes?
Speaker 2: I’ve heard that you should not photocopy the documents and attach them to the I-9, because that’s a form of discrimination.
Jennifer Pawlak: That is not true. However, you have to have the same policy for everybody. If you’re only copying PR cards, that’s absolutely discrimination. You can have a policy of either photocopying or not photocopying. And there are obviously two different camps of thought on that, one being if you’re audited, and you have a copy, and you completed the I-9 wrong, at least you have the right documents. The flip side of that is if you completed the I-9 correctly, and have bad documents, they’re going to get you one way or the other.
Speaker 2: I heard because it collects more information than what’s required.
Jennifer Pawlak: For the I-9 purposes, you are allowed to have a copy of the document. And the I-9s, by the way, should be stored in a separate folder from everything else. They should not be in an employee file. You should have a binder, or a cabinet or whatever, that’s only accessible to required people. And that can contain the copies of the documents.
And I had a question from somebody a couple weeks ago about now there’s a rule about not being able to copy social security cards. I mean, in the I-9 context, you absolutely are allowed to do that, if that’s your policy. If you have been keeping copies, and you’re going to decide to not keep copies, you can decide that whenever you want. You just have to make a note to “the file”, as they say, to say that now we’re going to not be keeping copies. And you never shred anything.
One of the things I did not discuss on here was how long you have to keep an I-9. You must keep an I-9 for as long as somebody’s employed. If they’re employed for 40 years, you keep the I-9 until they’re gone. And then once they’re gone, you have to keep it a year. So from their term date, you have to keep the I-9 for a full year, unless they were employed for fewer than three years, and then you keep it for three years. So it’s whichever the longest date is. And then you can shred them. That’s the one time you get to shred that, after you’ve completed that time.
Okay, so why do we care? You don’t send the I-9 anywhere. No one really checks up on it. Why are we so concerned all of a sudden, so to speak, with I-9 compliance? And why is it such a big deal? And why am I here today? Not just to tell you how to complete a form. Although, I will say, I have this book, the I-9 E-verify Handbook. There is a 15-page instruction booklet that you’re technically supposed to give to your employees, and there’s a 250-page actual handbook. So, for a two-page form, that’s hundreds and hundreds of pages of instructions. So it’s understandable why people get it wrong, and why we’re in the situation we are now with work site enforcement.
So work site enforcement is on the rise, 400 to 500% over last year. And this has been a dedication on the behalf of Immigration and Customs Enforcement. So fiscal year starts October 1st and September 30th. They issued, last year, 5981 I-9 audits, up from 1300 the year before. They had this crazy raid where they issued like 1400 in one week. It was this calculated sort of widespread event where ICE agents just went in and just handed out audit notices like it was going out of style. And experts are predicting 15,000 this year.
They have not released any statistics yet. That doesn’t mean that they won’t. We’re only about halfway through the year now. Probably this summer, that’s when they like to really hit you with the numbers, and get people freaked out about the rest of the year. Now, if you get an audit, you have three days to produce the documents they request. And then it could take several years for that actually to come to fruition. Like most government things, take a little time to complete.
Investigations are led by ICE. Everyone has probably heard of ICE: Immigration and Customs Enforcement. And it is their Homeland Security Investigations Unit. And I have to read their official description because I do. So, according to their website, HSI is a critical investigative arm of the Department of Homeland Security. And it is a vital asset in combating criminal organizations illegally exploiting America’s travel, trade, financial, and immigration systems. So HSI is not just responsible for coming in and auditing your I-9s. They’re responsible for any type of worksite raid. So that’s not their whole job.
Industry averages indicate 76% of a company’s or an organization’s I-9 have at least one error on them. At $1862 per form as an average fee, that adds up to quite a hefty fine. And not having an I-9 on file is even worse.
So common I-9 errors that, like I said, could get you into this $1862 fine: forgetting to include a birthdate, failure to sign or date a form. That’s a really big error. They have technical violations and they have substantive violations. Substantive violations weigh more heavily, because basically signing the form is your attestation that everything is true and correct, and you’re authorized to work in the United States. And that goes for both the employer and the employee. Missing an address of the employer, just forgot to sign it, forgot to put it in. And using incorrect documents. So not only is overdocumentation discrimination, it can also get you into a bit of trouble.
So in your free time, do a quick search for ICE raids, and you’ll plenty of examples. This was the most … not the most recent. I’m going forwards. So here are just some pictures. This is literally what it looks like when they come in and raid you. This is not what happens when they issue an audit notice. An audit notice is one or two people, plain clothes, they are packing heat. They come in and they give you your audit notices. This is way further down the line, where they actually have completed their investigation, and have come in to raid your offices. So this is the most recent one.
ICE has said that they want to be feared, just like we fear the IRS. And they’re doing a really great job of that. They invite media to their raids. They post videos on their website. They post all the press releases on their website, to say, “Big bad employer got caught. We arrested this many individuals.” And they like to publicize that as much as they can.
So this is the latest once. In North Texas, they raided CVE Technologies. CVE Technologies is a reverse logistics company. They refurbish electronics. They arrested 280 unauthorized workers. And this started because HSI received tips from anonymous sources, and that’s how a lot of these things happen, that they were employing unauthorized workers. The I-9 audit began in January 2019, which confirmed numerous hiring irregularities.
So I bring this one up because this is the probably most notable case in the recent history, where it’s not your typical manufacturing company or farm or construction company. This is a technology company. It is sort of on the manufacturing side, so there’s lots of turnover. But it’s sort of the first non-usual raid. We still don’t know what’s going to happen. It’s very early. Once the raid happens, there’s still a lot of legislative and due process that has to happen for official arrests and charges to be filed.
The high court of immigration is the Office of the Chief Administrative Hearing Officer. And they recently issued a $44,000 fine to a cleaning company, which doesn’t sound like a lot of money. But $44,000 is probably not anything anyone has in their budget to just hand over. So this was based on the discovery during their audit that the employer failed to sign the employer attestation on 100% of their I-9s. So even if they filled out the form, and they put the right documents on there, they forgot to sign it and say, “Yes, I reviewed these documents. I agree that I looked at them, the person’s good, they look like the person.” So $44,000 just for that.
Nearly 70% of the company’s forms, the employee had not attested to their immigration status. That’s a big no no. The penalty also covered one employee who was found to be unauthorized to work in the United States, and also had presented false documents, and the employer knew about it.
So that’s the other kind of tricky part. If you know that somebody’s not work authorized, I would hope that you have a policy about what to do about that. They should be terminated. That should be your policy. But, now, there’s a lot of different ways someone can change work authorization. So if you’re not sure, reach out to your attorney, or your HR person, if they’re very knowledgeable about that, especially with DACA and all these ways for other people to get proper work authorization.
So our next most recent interesting case, I suppose. A pork production plant in Oklahoma was raided. They knowingly hired and employed unauthorized workers for a five year period. I’m sure it went on longer than that. They were fined over a million dollars. They also failed to properly complete their I-9s, so it wasn’t just that they were hiring unauthorized workers.
This investigation also looked into allegations that healthcare claims were fraudulently submitted to the Oklahoma Medicaid Program. So agencies really like to share information. A lot of these raids and audits happen because there’s been another type of desk audit, or a tip from the IRS, from the EEOC, from whoever. And they’re like, “Oh, yeah, maybe we should go into that company and check them out.” The settlement requires this company to pay $750,000 to ICE and $256,000 to the state of Oklahoma’s Attorney General. It could have been more, but they were very cooperative in their investigation. And, once they were discovered and audited, they did start to implement different compliance activities. So it’s never too late to start doing the right thing.
Probably one of the most noteworthy, just because of when it happened and sort of this recommitment to worksite enforcement, was this Bean Station Tennessee raid. Over 30 years, the owner knowingly hired or caused others employed by him to hire unauthorized workers as employees. The unauthorized aliens were knowingly hired to reduce FICA tax obligations, unemployment insurance premiums, unemployment tax obligations, and worker’s compensation insurance premiums. So it wasn’t just because it was cheap labor, it was to avoid a lot of other obligations.
The raid was April 2018 and it took them four months, five months to really get down to the brass tacks. 104 unauthorized workers were arrested. And the owner himself is liable, and has agreed to pay 1.4 million dollars on or before his sentencing, which keeps getting delayed. But now it’s scheduled for June of this year. So this is an example of having this policy at the highest levels. It does hold you personally liable, especially because it was his idea.
Waste Management, everybody knows what Waste Management is. They had a documented and an established pattern of hiring unauthorized workers. It was specifically in one of their locations in Texas, authorities discovered 16 illegal aliens, and at least 100 employees in company records who were verified as fraudulently documented, or using an identity that did not belong to them. They had a policy of hiring and rehiring workers, with reckless disregard to their lack of work authorization. Three managers where indited in this. In May 2014, they received 27 months, 87 months, and 94 months in prison, for having this established practice of doing this. Waste M