I 9 & e-verify Glenn M. Cooper

1. I-9 & E-VERIFY
COMPLIANCE
HR FLORIDA 2011
GLENN M. COOPER, ESQ.

2. Focus on Enforcement
• In the absence of comprehensive immigration
reform, the immigration agency is focusing its
resources on employer compliance.
• Criminal penalties, forfeitures and civil fines!
• As recently as January 20, 2011, ICE Director
John Morton announced the creation of a new
employment compliance center in Crystal City,
VA. Sole mission is to facilitate I-9 audits for
companies of all sizes.

3. Enforcement (con’t)
• How does it happen? Typically, ICE
will issue a notice of inspection (via
mail or served in person). Employer
provided 72 hours to produce I-9s.
• By the time employer receives notice,
it’s often too late to remedy errors.
Need to plan ahead.

4. Setting up an Effective I-9 Process.
• Who needs an I-9? All employees hired
after November 6, 1986 (date of IRCA).
- includes payroll employees
- contractors if directly paid/supervised
by employer
Does NOT include volunteers
Does NOT include independent
contractors (but…be sure to include
language in contract to cover I-9 liability)

5. Rehires
• Do not need to re-I-9 a rehire IF
the employee has a properly
completed I-9 on file, which is
less than 3 years old and the
original I-9 does not contain
employment authorization
expiration dates.

6. How to Set up an Effective I-9
Process
1. Appoint an I-9 captain. Captain should
be well-trained on I-9 issues – and
approve all I-9s completed by outer
office managers.
2. Be sure to verify all I-9s in person. Do
not accept fax or email scan copies of
documents.
3. Be sure that every section is
completed – do not leave blanks.

7. Best Practices (con’t)
• Be sure I-9 is completed timely: Section 1 to be
completed by employee on day 1 of employment.
Documents verified/Section 2 completed by day 3
of employment. Sign and date each section.
• Do NOT ask for specific documents – allow
employee to choose from list. KEEP COPIES, but
BE CONSISTENT!
• Put correct documents in proper columns (List A,
B, C) – make sure all documents are unexpired at
time of verification.

8. Best Practices (con’t)
• Establish an automated tickler system with
reminders of upcoming expiration dates. Best
to set for 6 months, 3 months and remind
employee.
• Reverify timely. Use Section 3 to update
documents. Do not reverify identity docs that
are expiring (driver’s license, etc.)
• Do NOT reverify permanent residents,
refugees or asylees.

9. Best Practices (con’t)
• Keep I-9 records separate and apart
from personnel files – avoid a fishing
expedition.
• Destroy I-9 records when eligible.
Follow the 3 year/1 year rule. [3 years
after I-9 created or 1 year from
termination date, whichever is later].
For ease of use, purge 3 years after
term date.

10. Minimize Potential Penalties
• Good faith defense.
• Do internal audits every 6 months –
correct deficiencies and date w/
current date.
• Enlist outside counsel to perform
annual audit.
• Maintain a current list of employees
with hire/term dates, and cross check
for I-9s.

11. Avoid Document Abuse
• Never ask an employee for a specific
document – always allow them to choose
from list.
• Do not reject any document that appears
facially valid. Don’t play detective.
• Do not conduct I-9 process in advance of
hire.

12. What about E-Verify?
• E-Verify is a partnership between
DHS and SSA.
• Voluntary participation unless fed
contractor.
• Using E-Verify creates a rebuttable
presumption that your company has
not “knowingly hired an unlawful
worker” – but participation does not
create a safe harbor.

13. E-Verify (con’t)
• Decide whether or not your company
will use E-Verify. Be consistent with
every new hire.
• If you choose to use E-Verify –
review MOU, and post notice to
employees.
• Be aware that there are significant
mis-matches in E-Verify, creating
difficulties.

14. E-Verify (con’t)
• Under E-Verify, complete I-9 form
first, then run employee info. If mis-
match, allow employee 8 business
days to remedy problem.
• What if they can’t remedy problem in
8 days? No clear guidance…
employers must balance immigration
risks against potential employment
discrimination claim. Call counsel.

15. IMAGE program
• IMAGE is a joint program between gov’t
and private sector to improve employer
self-compliance.
• Under IMAGE, employers receive
education and training from ICE.
• Must use E-Verify and submit to ICE I-9
audit to become “IMAGE certified.”
• Does not provide safe harbor – but will
be a mitigating factor in fines/penalties.

16. Bottom Line
• Most audits/raids are not random –
typically triggered by complaint from
disgruntled employee.
• Be prepared. Stay ahead of the
compliance curve.
• Have a response plan for the
unexpected…what to do when the
gov’t shows up.