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Cautionary Document Abuse Tale for Electronic I-9 Users

John Fay, Esq. of the I-9 and E-Verify Blog writes about the latest investigation of the Department of Justice Office of Special Counsel for Immigration Related Discrimination. The Department has opened a document abuse investigation related to the documentation request system of the company's electronic I-9 provider. John explains the nateure of document abuse and what employers should look for when moving to an electronic I-9 provider.

Justice Department Sues Major U.S. Egg Producer for Discrimination Caused by Electronic I-9 System


Pre I-9 Audit Planning: Prepare for the Worst and Hope for the Best

In Part 1 of  this 2 part blog post on the I-9 and E-Verify Blog, I discuss some of the most common and most troublesome outcomes of an ICE or in-house I-9 audit, including I-9 errors, finding fraudulent documents and identifying undocumented workers. The article looks at  how employers can make plans ahead of time to adress even the worst case scenarios.

Part 2 coming on February 23 will discuss more worst case scenarios, including complaints to the Office of Special Counsel, Community/Union involvement and employee walkouts. The article also discusses communications with employees during an audit and the importance of consistency when making I-9 audit policies and decisions.


I-9 Audit Guidance for Employers from the Office of Special Counsel

The DOJ Office of Special Counsel for Immigration Related Employment Practices( OSC)  has issued guidance for employers who are going through an ICE I-9 audit or conducting their own I-9 audit.  Employers often inadvertently take actions during an audit that are overbroad and reactionary and which sometimes can be considered to be discriminatory or a form of I-9 document abuse. The  OSC guidance is meant to help employers navigate the intricacies of rigorous I-9 employment eligibility verification practices while at the same time respecting employee rights.

The OSC urges employers to establish a transparent process for interacting with employees during any federal audit, especially those employees whose I-9s may be defective or who ICE has indicated possess faulty identity and/or work authorization documents.  The OSC  encourages  employers to provide written notice to employees in these categories, advising them both of the reason for the audit as well as the specific deficiencies with their documentation.  

Employees with deficient documentation  should be provided with acceptable list of documents on page   of the I-9 form and provided with a short reasonable time period to return to work with documents from the list.  Employers with unionized  workforces should also advise the union of the audit and determine whether any provisions of the collective bargaining agreement may be implicated.

The OSC also makes clear that during an audit or I-9 correction process, employers should never single out any employees because they look or sound foreign selectively scrutinize employees of a particular race or nationality, suspend or terminate employees without giving them a reasonable chance to comply with documentation requirements, narrow  the range of allowable I-9 documents from what the form allows, or require more documentation than what the I-9  ordinarily requires.

The OSC guidance is helpful, but should never be used as an excuse to continue employing a clearly undocumented worker. Once an employee has been given sufficient time to present acceptable documents and is unable to do, the worker must be terminated no matter how difficult the decision for an employer. This act will demonstrate an employer’s commitment to maintaining a legal workforce, and eliminate the possibility that the employer may be charged with continuing to hire and unauthorized worker.









In House I-9 Audits : A How To Manual - 2/15 Webinar

Last week  ICE launched 1000 new I-9 audits. This week, 5000 employers with prior I-9 violations are being re-audited. Next week, it could be your company. Correcting techincal and substantive violations now will save employers a lot of liability in the long run. Our 1 hour webinar will discuss the basics of conducting an in-house I-9 audit, including what the audit should cover, who should conduct it, how and which I-9 corrections can be made and how to document the audit results. With I-9 investigations and penalties increasing exponentially, there is no time to lose. Bonus material includes an update on current enforcement trends, Social Security No Match, and Department of Justice actions against employers for immigration-related discrimination.

For more information visit the sign-up page here.


Look at the Facts not the Faces: Rug Manufacturer Pays $10K to USC Citizen of Hispanic Origin for Discrimination during the I-9 Process

The Department of Justice (DOJ) announced another recent settlement with an employer for document abuse during the I-9  process. A former employee of Garland Sales, Inc., filed a complaint with the DOJ  Office of Special Counsel for Immigration Related Discrimination after he was terminated from employment for refusing to provide his employer with the specific documentation it requested for completion of his I-9 form.

The complainant was a naturalized U.S. citizen of Hispanic origin. For completion of his  I-9, he provided an unexpired driver’s license (List B) and an unrestricted social security card (list C). Garland accepted these, but also requested that he provide his green card, to prove that he was legal to work in the United States. When the worker objected, Garland terminated his employment.

The documentation the employee presented were absolutely sufficient for I-9 purposes, therefore Garland committed document abuse when it requested more and different documents than what was required for the I-9 form. The employee was well within his rights to refuse to provide the additional document, and in fact would not have even had a green card in his possession because he had already become a US Citizen.

In an effort to make sure that they are doing everything possible not to hire an undocumented worker, employers sometimes go beyond what is allowable during the I-9 process. Unfortunately this has negative consequences as well, as shown by the settlement Garland reached with DOJ, which included a civil money penalty, back wages and retraining of all workers involved in the I-9 process. 

In addition, it is much more likely now that Garland will be subject to an I-9 audit by ICE and repeated reviews of its I-9 and hiring practices by the DOJ.  The best way to avoid these long term consequences is to ensure that hiring, I-9 and E-Verify processes are fair and non-discriminatory in nature. As the DOJ campaign says “Look at the Facts, Not the Faces.”

For more on acceptable I-9 procedures, review the DOJ's Guide to Fair Employment.



ICE Revisits Past I-9 Offenders with new round of Audits

In the past few weeks, Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations targeting employers who have been cited for I-9 violations in the past 3 years.  Audit notices have been sent to about five thousand such employers requesting  review of all new I-9s as well as previously audited I-9s. These records will be reviewed to make sure that past violations have been corrected and have not been repeated in newly completed I-9s. 

Employers may be charged  with treble damages when  they are found to have continuing I-9 errors from their initial audits, and/or to have committed the same errors again on recently prepared I-9s.  ICE investigations under the Obama Administration, although less dramatic than  the well-publicized raids under the Bush Administration, where undocumented workers were lined up, arrested and eventually deported, are no less troublesome and disruptive for employers. Often these “silent” raids like their predecessors also result in the identification of suspect documents and undocumdnted workers.

During the audit, ICE will review all I-9s for technical and substantive violations as well as verify the immigration/citizenship status of all workers. If a worker turns out to be undocumented, he/she must be terminated from employment, or the employer will face criminal and civil penalties for continuing to employ an undocumented worker after learning of his/her status. The significant increase in fines that may be levied in a re-audit situation is a strong motivator for ICE agents, so employers should be wary of ICE officers who seem helpful, and who sometimes even discourage employers from correcting technical I-9 violations.

To avoid initial or repeat  I-9 penalties, employers need to take steps to ensure their I-9 compliance  system is solid. Specifically, employers who have been audited, should ensure that all required corrections were made; suspect documents were investigated, and any undocumented workers removed from employment.  These employers should also conduct a self-audit on all I-9s created after the ICE audit. Continuing and common reoccurring violations should be quickly corrected and addressed through training of staff and reediting of the forms to ensure that corrections were done properly. Employers who have not yet been audited, should review all I-9 policies and procedures to ensure they are up to date with all of the latest guidance from USCIS and the Department of Justice.  Personnel tasked with I-9 completion should be re-trained in light of the numerous changes to I-9 policy guidance from USCIS as well as  to the list of acceptable documents.

For more information on this or any other I-9 compliance issue, contact Valentine Brown at


Department of Justice Efforts to Curb I-9 Related Employment Discrimination Intensify

            In its latest investigation, the Department of  Justice Office of Special Counsel for Immigration-Related Discrimination has a announced that it had reached yet another “six-figure” anti-discrimination settlement agreement to resolve allegations that an employer had failed to comply with I-9 procedures for noncitizens authorized to work in the US.  Specifically, the DOJ brought suit against the University of California San Diego Medical Center (UCSD), alleging a pattern or practice of requesting excessive I-9 documentation of non-citizens.

Specifically, UCSD  committed “document abuse”  by maintaining a policy of requiring Legal Permanent Residents to provide copies of their green cards, even though they had already met I-9 documentation requirements by presentation of a List B (driver’s license) and List C (unrestricted social security card) document. Under the settlement, the hospital has agreed to pay  $115,000 in civil penalties, one of the highest penalties ever assessed.  In addition, the hospital has agreed to give supplemental training to its human resources personnel so that such staff will avoid discriminatory practices in the employment eligibility verification process and work with the DOJ to make sure that fair and legal I-9 procedures are being used across all University of California campuses, medical centers, and facilities.

Large healthcare organizations and higher education institutions have been especially targeted by the DOJ during the last 12 months, due to their diverse workforces and, multiple hiring sites. All employers should take care to implement I-9 policies and procedures which walk the fine line between verifying employment eligibility and avoiding immigration-related discrimination. For more information on this topic, the Duane Morris Institute has a one hour webinar on I-9 compliance and self-audits on February 15, 2012.

For more information on this or any other I-9 topic, contact Valentine Brown at 215979-1840 or by email


Farmland Foods Pays Highest Ever Civil Fine for I-9 Document Abuse

 On August 22, Farmland Foods, a prominent pork producer in Missouri agreed to pay $290,400 in civil penalties for discrimination in its I-9 process.  This is the highest civil penalty charged by the Department of Justice Civil Rights Division (DOJ) to date in an immigration-related discrimination investigation.  In addition to the fine, Farmland Foods will be subjected to I-9 process training, auditing and monitoring by both the DOJ and the Immigration and Customs Enforcement agency (ICE) for the foreseeable future.

During its investigation the DOJ Found that Farmland had engaged in a pattern and practice of discrimination by enforcing unnecessary and excessive documentary requirements regarding work eligibility for noncitizens or foreign born citizens of the United States, while not imposing nearly as strict a policy on U.S. born workers.  For noncitizens, Farmland required presentation of a permanent resident card or employment authorization document, rather than allow the employees to select from the list of acceptable documents on page 2 of the I-9 form. The company also required documentation such as social security cards on many occasions.  Foreign-born, naturalized American citizens had to present evidence of their citizenship, such as naturalization certificates or United States passports, even in cases in which these individuals could prove their authority to work through other documentation.

The form of  I-9 discrimination Farmland engaged in is called "Document Abuse." This violation may occur in  several ways: Specifically, an employer may request that employees provide more documents than those required by Form I-9 to establish a person’s identity and work authorization; an employer may require specific documentation, such as a permanent residence card, as a prerequisite to establishing identity or work authorization; an employer may reject other documentation which would legitimize an employee’s identity or employment authorization status; and/or the employer in question may treat certain groups of people differently in requiring some who may look or sound “foreign” to provide certain documents to prove identity or work authorization while not requiring the same of other persons outside of the “foreign-looking” or “foreign-sounding” group.  

The lesson to be learned from the Farmland controversy is that sometimes employers can go too far in trying to ensure that their workforce is legal,  causing them to  run afoul of anti-discrimination provisions.  Employers must take careful, thorough steps to avoid patterns and practices of employment discrimination, including  extensive and regular training for personnel involved in the I-9 process.  The bottom line to avoiding document abuse:  Give an employee page 2 of the I-9 form and allow the employee to chose which documents to present. If the documents are insufficient return them to the employee with page 2 and explain why the documents  do not meet the criteria and ask them to return with something else on the list. If  the employer is unsure about a document, do not reject it, ask counsel or a more experienced human resources person, or even consult the USCIS Employer’s Handbook, but do not reject documents without at least first considering what they are and where they may fit into Section 2 of the I-9 form. 

For more information on how to avoid document abuse and other I-9 topics, contact Valentine Brown,













E-Verify Requirement Resumes for State Contractors in Minnesota

The state of Minnesota has once again mandated E-Verify for state contractors.  After Governor Mark Dayton dropped the requirements for E-Verify back in April, the electronic verification system was reintroduced under Minnesota’s final budget deal, which was approved in July.  Under the new law, private businesses which provide more than $50,000 worth of services to the state must enroll in the program to be eligible for state contracting.

The use of E-verify for  State employees continues to be suspended in Minnesota due to problems that arose in December of 2009. At that time the state was using a Texas Vendor called Lookout Services, which provided I-9 software to assist in Minnesota’s implementation of E-Verify.  Unfortunately, it was discovered at that time that the names, birthdates, and social security numbers of about five hundred employees were made available to the public through Lookout’s website.  Minnesota Public Radio in particular discovered that it could access state employee data on Lookout’s website without the necessity of a password or any encryption software, and found birthdates, hire dates, and other sensitive personal information for every state agency as well as for several private companies.  This security breach highlights the importance of vetting  the systems of electronic E-verify vendor agents to ensure the employee data will be safe and properly submitted to the E-Verify system.

State contractors in Minnesota should measure the cumulative value of their contracts and determine whetthr they will be affected by the new law.  E-verify registration information is available at For more information on the pros and cons of E-Verify contact Valentine Brown at


EADs Automatically Extended for Some Employees: Are your I-9 Procedures Up to Date?

On August 16th, USCIS announced that all Employment Authorization Documents (EADs) for Liberian nationals in the US on the Deferred Enforced Departure (DED) program would be automatically extended until March 31, 2012.  The DED program has been extended for 18 months, with a new expiration date of Marcy 31, 2013. The Automatic EAD extension will allow eligible Liberians to keep working at their places of employment while their applications for new EADs are in process. While this development is great news for Liberian nationals on DED, it creates more work for their employers when completing, correcting or reverifying the I-9 form to reflect this development. Below are the three possible scenarios that may arise as a result of the automatic extension and information on how the I-9 should be completed under each one.  


New Hire I-9s During Automatic Extension Period

Employers may accept an expired EAD that has been auto-extended to complete a Form I-9 as long as the document name, number, and new expiration date of March 31, 2012 in Section 2 under List A. The employer cannot request that an employee provide proof that he or she is a national of a country designated for DED, but  the employer may verify whether the employee in question is DED eligible by checking to see if the EAD document contains the category notation “A-12” or “C-19” on the face of the card under.   If a given employee presents an EAD, the employer must accept it if it reasonably appears on its face to be genuine and pertains to the employee presenting the card. In general most employees in this situation will provide their employers with the expiring or expired EAD as well as a copy of the USCIS announcement regarding the automatic extension. These are sufficient to meet the I-9 requirements. 

I-9 Reverification for Existing Employees 

For current employees, who are affected by the automatic extension, employers must “correct” the I-9 to show the new EAD expiration date. USCIS reccomends the following procedure on page 9 of the M274 Employer Handbook: The employer should draw a line through the expiration date of the EAD in Section 2, write the new date to which the EAD has been extended above the previous date, write “DED Ext” in the margin of Section 2, and initial and date the correction.  

Reverification upon Expiration of Automatic Extension Period 

Upon the expiration of the automatic extension period, employers must re-verify a given employee’s employment authorization via a Form I-9.  Specifically, the employer must enter the document name, number, and expiration date in Section 3 of the Form I-9.  The DED beneficiary may present an unexpired EAD with an updated expiration date or any other document from List A or C of Form I-9 establishing that he or she continues to be authorized to work in the United States.  If the employee in question presents a new EAD, it will read either “A-12” or “C-19” on the face of the card under “Category,” and the EAD will then become acceptable as evidence of both identity and employment authorization.  If the employee in question cannot furnish proof of current employment authorization, the employer cannot continue to employ that person.  

 For more information on this topic or any others relating to I-9s, please contact Valentine Brown at 215 979 1840;











Free Seminar hosted by ICE in NY on 9/20: IMAGE Program Basics

On Tuesday, September 20th, ICE will be holding an information seminar regarding its employer protection and compliance program, known by the acronym IMAGE (ICE Mutual Agreement between Government and Employers). The program aims to assist employers in discovering and avoiding fraudulent documentation in connection with their workplaces, as well as helping employers develop a more secure and stable workplace on the whole.  To become "IMAGE certified" employers will have to enroll in the government’s E-Verify program, establish a written hiring and employment verification policy that includes internal Form I-9 audits at least once per year, and submit to a Form I-9 inspection.  If employers satisfy all of these steps, ICE in turn promises to waive potential fines for substantive violations as long as they are discovered on fewer than fifty percent of submitted I-9s; mitigate fines if substantive violations prove to be present in more than fifty percent of submitted I-9s; forego I-9 inspection for another two years after an initial such inspection; and provide information and training before, during, and after inspections.  Beyond the abovementioned benefits available for enrolling in the IMAGE program, employers also benefit from public recognition of IMAGE certification, brand name protection, and avoidance of lawsuits or other legal actions arising from unauthorized employment. The seminar will take place specifically at Omni Berkshire Place at 21 East 52nd Street, New York, NY 10022.  ICE requests that those interested in participating in the seminar register at 

For more information on I-9 compliance, I-9 audits and whether the IMAGE program may be advisable or even beneficial for your company, please contact me at  or 215 979-1840.

New USCIS website "I-9 Central" Coming in Mid Spring 2011

In a recent letter to the United States Chamber of Commerce, Director of the USCIS, Alejandro Mayorkas, announced that the agency will be launching a new I-9 website to help employers more easily complete the form. Director Mayorkas indicates that “clear guidance on how to complete the form I-9 will be posted on a new USCIS website, I-9 Central.”  He indicates in the letter that additional features such as dropdown boxes, help text and radio buttons should be added to the online form in order to help employers avoid making a number of technical errors.  The letter does not confirm that these features will be available with the launch of the new website, but indicates that they are currently under discussion and that additional stakeholder meetings will be held with employers in the near future to discuss these and other options.

Director Mayorkas’ announcement was in response to a letter from Randall K. Johnson, Senior Vice President for Labor, Immigration and Employment Benefits of the U.S. Chamber of Commerce.  The letter, submitted in late January, suggested several practical changes that could be made to the I-9 form available on the USCIS website, in light of technological changes that have occurred since the initial I-9 requirement was written into law.  This fact, combined with the significant increase in I-9 enforcement actions in the past two years, has brought into stark relief the number and unfortunate effect of technical errors made by employers when completing I-9 forms.

The Chamber of Commerce suggests that technological changes to the I-9 form itself could largely eliminate all technical violations made by employers, including missing address information, signature dates, employee’s maiden name and the correct name for issuing agency for List B documents.

The Chamber argues that eliminating technical errors from the entire I-9 discussion would allow Immigration and Customs Enforcement (ICE) to focus its worksite enforcement efforts on more important violations and more egregious violators.  Similarly, it is a colossal waste of time and energy for employers to be required to correct de minimus errors on I-9 forms.

The Chamber of Commerce also calls on ICE and USCIS to follow the President’s suggestion to advance common sense regulatory reform measures.  In the I-9 context, this would include reducing or completely eliminating employer liability for technical violations and recognizing an employer’s good faith efforts to properly and timely complete I-9 forms.

We will follow "I-9 Central" developments and keep our readers posted.


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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.