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Ask The Expert: I-9 and E-Verify Compliance

This week’s “Ask the I-9 Expert” relates to a steadily increasing practice for many organizations in the US: the use of temporary and contract workers to meet staffing demands.

Posted On May 23, 2019
our company uses temporary employment agencies for about 70-80% of our hourly workforce. What percentage of responsibility do we have as a company (if any) for I-9 errors within that temporary employment agency workforce working at our facilities?

generally speaking, a company is not liable for “paperwork” errors on the I-9s of contracted employees, since the temp agency is the employer of record and ultimately is responsible for following the I-9 rules. However, the law will extend liability to the end-user client to the extent the temp agency is using unauthorized workers and the client knew or had reason to know. The rationale is that if the client turns a blind eye to its contractors’ immigration compliance practices, the client is (essentially) using a contract to avoid directly verifying the work authorization of contractors’ workers, and then benefiting from the workers’ unauthorized labor.

Expert Tip:

Kevin Lashus, an immigration attorney and former Assistant Chief Counsel with ICE, offered these additional comments:

That’s right. Remember ICE agents want to push investigations towards presentation to a criminal AUSA (Assistant United States Attorney); so, they are quick to allege racketeering (yes: the thing prosecutors allege against Organized Crime). Two or more parties working in collusion to violate the law constitutes racketeering. In the case of an out-sourced labor provider, the government will presume you entered into a contract for the labor SPECIFICALLY to circumvent the law. Make certain the contract for services includes an indemnity clause to protect your organization from such allegations.

Kevin Lashus, Partner, Fisher Broyles

Kevin Lashus is a Partner with the Austin office with Fisher Broyles. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. Mr. Lashus is a graduate of Stanford University and The University of Texas School of Law. He was an Assistant Attorney General for the State of Texas under then Attorney General John Cornyn. He then moved on to the U.S. Department of Justice in 2002, and, in 2003, became Assistant Chief Counsel with the Department of Homeland Security, Immigration and Customs Enforcement, where he remained until 2007 in its San Francisco office and, most recently, its Minneapolis/Saint Paul office—advising special agents during national security investigations, criminal immigration prosecutions, and worksite enforcement actions. Mr. Lashus was a member of the National Security Team.

Have a question for one of our I-9/E-Verify experts? click here to post your generalized questions on Form I-9/E-Verify processes and procedures. Each week, we’ll address and discuss the most pressing issues and provide best practices from our network of attorney clients and partners.

This week’s “Ask the I-9 Expert” addresses a practical question that frequently arises when completing the document information in Section 2. You may also run into this issue when performing a “self-audit” of I-9 forms.

Posted On May 1, 2019
Are we (as employers) allowed to use abbreviations in Section 2 of the Form I-9 when recording the document information? For example, my staff often use “DL” for driver’s license or “SS Card” when filling out Section 2.

Yes, abbreviations are permitted but it’s generally best to only use common ones (like those you mentioned) which are unambiguous. The Form I-9 instructions (available here) also list some pre-approved document title abbreviations.

Expert Tip:

Attorney and I-9 expert Bruce Buchanan offered these additional comments:

Although our clients use abbreviations on a regular basis, some are better known than others in use. So when you think about the use of abbreviations on I-9 forms, one should only use the obvious ones. The USCIS’s M-274 Handbook for Employers states “You may use common abbreviations for the document title or issuing authority, for example, “DL” for driver’s license and “SSA” for Social Security Administration.”

There have been few issues litigated on abbreviations. One was the OCAHO decision in Ketchikan Drywall Services, 10 OCAHO no. 1139 (2011). In that case, the government alleged violations where the I-9 forms for 2 employees showed each presented a driver’s license as a List B document and the employer wrote acronym “DOL” as abbreviation for Department of Licensing. Examination of the green cards, shows the driver’s licenses were issued by the “State of Washington Department of Licensing.” Thus it appears DOL stands for the Department of Licensing.

Although OCAHO seemed supportive of that abbreviation, it ultimately did not reach a decision on that issue. However, if a client uses abbreviations and legal counsel is not aware of what the abbreviations stand for, it is best not to use those abbreviations.

Bruce E. Buchanan

Bruce E. Buchanan is a founding partner at Sebelist Buchanan Law PLLC with offices in Nashville and Atlanta, where he represents employers and individuals in immigration law, with a special emphasis on employer immigration compliance, and employers in employment/labor law matters. Additionally, he is Of Counsel to Siskind Susser concerning employer immigration compliance matters.

Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982. He served as senior trial specialist for the NLRB for 20 years. Mr. Buchanan also served for 12 years as Adjunct Professor at William H. Bowen UALR School of Law. He went into private practice in 2003 and formed his own law firm in late 2015.

Mr. Buchanan is passionate about representing clients on I-9 compliance issues, such as ICE inspections and internal I-9 audits. He is the co-author of the book, I-9 and E-Verify Handbook, which is geared to HR professionals and available at https://www.amazon.com/dp/0997083379. He also authors his own blog on employer immigration compliance located at www.employerimmigration.com and is a regular contributor to HR Professionals Magazine. Bruce is the long-time editor of the TBA’S Immigration Law Section newsletter and Labor and Employment Section newsletter.

Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas. He may be contacted at [email protected] (615) 345-0266.

Have a question for one of our I-9/E-Verify experts? click here to post your generalized questions on Form I-9/E-Verify processes and procedures. Each week, we’ll address and discuss the most pressing issues and provide best practices from our network of attorney clients and partners.

In this week’s “Ask the I-9 Expert,” we address a relatively simple (yet important) detail in dealing with a Form I-9 audit by the government. Note that “ICE” refers to Immigration and Customs Enforcement, the branch of the Department of Homeland Security responsible for ensuring that employers comply with their I-9 obligations.

Posted On April 22, 2019
In the context of an I-9 audit, do you have to turn over all I-9’s to ICE when they arrive after the 3 days or can it be limited to the ones that caused them to audit your particular location?

ICE will typically require that you produce all of the I-9s that they are requesting within the 3-day time period (or an extension thereof if you’re lucky). In terms of the scope, they can ask for all of your current employees, employees hired within the past 3 years, or employees for whom you are legally required to retain the I-9 (which means some terminated files will need to be turned over as well).

While it is possible that they might just inquire about 1 or 2 employees (perhaps the ones that raised suspicion), it’s more common for them to ask for everything so they can look for patterns of issues.

Expert Tip:

Attorney and I-9 expert Nici Kersey offered these additional tips and suggestions on steps that employers can take now to prepare for an I-9 investigation:

First, work with an immigration attorney to ensure that you are properly responding to the Notice of Inspection (NOI); some ICE agents/investigators/auditors will tell you that you do not need an attorney. You probably do.

Second, make sure that you understand the scope of the audit. Most Notices of Inspection (NOIs) are limited to employees working at a specific location, and they are generally limited to employees working for a specific legal entity. If you have more than one employer at the same worksite, you need to be able to determine which employees work for which entity.

Third (and relatedly), check the legal name of the employer listed on the NOI. If it is not correct, work with ICE (through counsel) to get it corrected. If the entity does not exist or has no employees, you do not have an obligation to turn over any I-9s. (That said, you should generally be clear with ICE about the proper legal name of the entity rather than simply saying there are no employees or no I-9s. The government will otherwise figure out the legal entity issue on its own, issue a new NOI, and feel like you were not fully truthful. No one wants to face a grumpy ICE investigator.)

Finally, you can sometimes get additional time to turn over the I-9s, but unless you really need it, you might want to save that request for later in the process. The three-day time period applies to the I-9s but does not, as a matter of law, apply to the remaining documents requested by ICE in its subpoena; as such, focus on gathering the I-9s and presenting them in an organized fashion. ICE almost always agrees that the remaining corporate information and documentation can be provided after the initial production of I-9 forms.

Nicole A. Kersey ("Nici"), Managing Director

Nicole A. (“Nici”) Kersey is an attorney whose practice has been dedicated to employment-based immigration, with a focus on the Form I-9, E-Verify, and related immigration compliance issues. Ms. Kersey partners with law firms, businesses, and other U.S. employers to provide advice, project management, and consulting services to organizations of all sizes to help them avoid civil and criminal penalties, as well as ancillary damage to reputation, caused by weaknesses in their immigration-related hiring and record-keeping practices. 

Nici also has experience working with employers to procure nonimmigrant and immigrant visas for foreign national employees. She has worked with individuals to obtain, extend, amend, and change nonimmigrant status and has assisted clients to obtain lawful permanent residence in the U.S. through applications for labor certification, petitions for outstanding researchers and aliens of extraordinary ability, and international manager petitions. 

Have a question for one of our I-9/E-Verify experts? click here to post your generalized questions on Form I-9/E-Verify processes and procedures. Each week, we’ll address and discuss the most pressing issues and provide best practices from our network of attorney clients and partners.