Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

[Blogger's Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.)

Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici's angst, as I noted in "The Distressed Bearer of Bad Immigration Tidings."

There are of course so many immigration stories, as I noted in my post, "Telling Immigration Stories," which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book -- Green Card Stories -- which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici's quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts. 

What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common

By Nicole ("Nici") Kersey

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated - in Spanish - that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment -- to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits - and I was afraid of having my blood drawn again - so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.

The recent CNN GOP debate on foreign policy surprised many for what it included and excluded.  Amazingly, nothing was said of the European debt crisis that threatens to create severe financial blowback in America.  The surprise by inclusion came from Republican flavor of the month, Newt Gingrich, who responded to a domestic policy question on immigration, specifically, what America should do with the large population of unauthorized immigrants among us:

"If you've come here recently, you have no ties to this country, you ought to go home, period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."

This prompted an attractive or repellant response (depending on one's views) concerning magnets. Candidates Bachmann and Romney chided Gingrich on the magnet of amnesty and the magnet of taxpayer-subsidized college tuition for DREAMers -- although post-debate reporting and opposition research revealed that both Willard Mitt and Michele Marie have espoused positions on legalization similar to Newton Leroy McPherson (Newt's name at birth).

However much they differ or align on legalization, there is one consensus magnet on which all 2012 candidates (including President Obama) agree -- the magnet of jobs.  It's not so much our freedoms of press, religion and assembly, our right to bear arms, our purple mountain majesties, or people like Steve Jobs, but rather, jobs -- the candidates opine -- are what impels foreigners to America.  Take away the attraction of unscrupulous employers looking the other way, identity thieves vending new impersonations, and accommodating document forgers doing a bustling trade.  Demagnetize them in the slammer, and then otherwise desperate non-natives willing to cross burning deserts and fortified borders will instead pursue opportunities elsewhere or stay put abroad.  Or so the theory goes.

In reality, however, the problem of dysfunctional immigration policies is not one of a jobs magnet, or an amnesty magnet, but rather the very program inaugurated in 1986 with President Reagan's signing of the Immigration Reform and Control Act (IRCA) to punish employers who violate the law. Our immigration system remains broken today because it was fundamentally flawed in concept from the outset.  Congress has consistently declined since 1986 to mandate that everyone -- American citizens and foreigners alike -- carry a national identity document and present this ID when applying for work. 

Instead, lawmakers copped out, or rather, outsourced the function of immigration cop to the private sector. By privatizing immigration enforcement as a date-of-hire requirement foisted on employers, but not making identity verification essentially foolproof through the creation and distribution of a national ID card, Congress doomed IRCA to fail. In effect, federal lawmakers forced the nation's employers and their human resource representatives to choose one of three options: Lawbreaker, Naïf or Stooge.  None of these choices attract, magnetically or otherwise.  An extended stay at Club Fed is not desirable.  Neither is naive ill-preparedness or the prospect of serving as Congressional whack-a-mole at the IRCA carnival.

As the Obama Administration mounts its ever-increasing silent raids on American businesses, demanding to see Forms I-9 (Employment Eligibility Verifications), payroll records and other required documentation, employers have had little choice but to prepare for the enforcement juggernaut. Increasingly, as explained here and in the video below, employers must ready themselves for the likely, if not quite inevitable, visit by U.S. Immigration and Customs Enforcement, or another federal immigration law enforcer:     

Some may think that the problem of job magnets will be solved once E-Verify, the federal employment verification database, becomes mandatory, as House Judiciary Committee Chairman, Lamar Smith (R. TX) has proposed.  It will not -- because E-Verify suffers from the law of GIGO.  The database is debased because it depends on the doubtful accuracy of Social Security Administration and Homeland Security Department records.  Moreover, although E-Verify has recently (and rather quietly) gained access to Department of State records on American citizens who've received a U.S. passport or passport card (I for one don't remember giving permission), and Mississippi DMV records, the e-system remains incomplete.  It still cannot catch identity theft and citizen impersonators.  It will not be foolproof until every American, not just every foreigner, is in the database.

That's not likely to happen anytime soon.  Witness the strange bedfellows of immigration who have opposed the REAL ID Act and encouraged states to drag their feet or demand waivers of the requirement that states satisfy federal standards for issuing new drivers licenses.  Opposition is also growing over a similar identification requirement, the Voter ID laws cropping up across the country. 

Politicians skirmishing for debating points will not solve our immigration dysfunctions.  The solution can only begin when the citizenry participates in a dialogue about the loss of privacy and creeping totalitarianism that a national work ID card might spawn.  We take our shoes off and allow ourselves to be irradiated or groped just to catch a plane.  Are we ready to be biometrically identified in a digital dossier to get a job?

As early as last January, Rep. Lamar Smith, Chair of the House Judiciary Committee, outlined plans to hold hearings to investigate the Obama Administration's policies on immigration-related worksite enforcement and propose a bill that would require employers to enroll in E-Verify, the Federal online screening tool that purports to verify work eligibility. 

True to his word, hearings on worksite enforcement and E-Verify have been held. And at last, a draft of a mandatory E-Verify bill, current as of June 8, is circulating on Capitol Hill.  Tentatively titled the “Legal Workforce Act” (LWA) and labeled a "Discussion Draft," the proposal would profoundly change hiring processes in the United States, and introduce expensive compliance obligations on all employers.  It would also increase the burdens on federal and state courts and on public and private prisons by creating a host of new LWA criminal penalties involving sentences to run consecutively (read: longer incarceration periods). 

Curious readers can take an early peek at a few key provisions of Rep. Smith's proposal:

• Mandatory Use Phased in.  Employers would be required to enroll and use E-Verify by a set deadline based on the number of current workers.  From the date LWA is enacted (if ever), E-Verify would be required within: 30 days for covered federal contractors; six months (for employers of 10,000 of more personnel); 12 months (for firms with 500 to 9,999 employees); 18 months (20 to 499 workers); two years (1 to 19 workers); and three years (for employers of farm workers).
• E-Verify Use Only for New Hires. Except for federal vendors who must verify current employees assigned to a covered federal contract, the LWA will only apply to new hires.  Also, it will not apply to farm workers returning to a former employer.
• No Preemption of AZ-style E-Verify Laws. LWA would permit the proliferation of state laws and local rules mandating E-Verify use as recently blessed by the Supreme Court in U.S. Chamber of Commerce v. Whiting: "A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system".  
• Weakened Good Faith Compliance Defense.  The LWA enfeebles the Sonny Bono amendment, enacted in 1996, which gives employers 10 days to correct technical or procedural Form I-9compliance failures after ICE points them out.  Although the Smith proposal would extend the curative period to 30 days, it would apply the defense only to compliance errors that are "de minimus."  Good faith compliance would be available, however, for E-Verify queries that failed because the online system was unavailable at the time.
• Criminal Penalties for false I-9 attestations and improper use of E-Verify.  Individuals would face criminal penalties of up to two years and fines for knowingly furnishing a social security number or DHS-approved ID or authorization number that does not belong to the person or submitting such a number in an E-Verify screening. Helpfully, however, the LWA waives a good faith first violation of the unlawful hiring rules.
• Change in retention period.  Employers would now be required to hold on to electronic or paper verification records for the later of five years from date of hire (currently it's three years) or one year from date of termination.

Back in January, Rep. Smith characterized mandatory E-Verify usage as something of a no-brainer, or in business-speak as low-hanging fruit, suggesting that 70% of Americans would agree with his assertion.  Given the sweeping harshness of the LWA, however, U.S. employers, proponents of immigrant rights and the American people must do more than just talk about Rep. Smith's "Discussion Draft."  The fruity guantlet from the right has been hurled into the political arena.  It's time to give it the Gallagher treatment.

The weather outside is frightful. Large chunks of hail are beating the earth in the form of "Notices of Inspection" (NOIs), delivered by U.S. Immigration and Customs Enforcement (ICE).  These NOIsome ICE chunks are hitting the doorsteps of more and more U.S. employers (1,000 have just landed). Even in unlikely San Francisco I understand that at least two large employers are shivering as they prepare to respond with loads of Forms I-9 (Employment Eligibility Verifications) on past and present employees and other requested business records.

In the past, large employers adopted a Goldilocks approach when seeking shelter from the storm.  Businesses of heft and breadth realized that the risk of employer sanctions had historically remained small since the former INS mostly audited small or mid-size employers, and ICE, the successor agency, preferred high-visibility raids over the more tedious inspection of immigration paperwork.  Thus, large employers pursued a strategy of "just right":  Neither so much vigilance over I-9 compliance practices that might risk an antidiscrimination charge, nor so little diligence that might trigger a raid. 

All that has changed with the Obama Administration's focus on civil enforcement through paperwork inspections, followed predictably by fines, orders to terminate unauthorized workers, and criminal prosecution of businesses and individuals the Justice Department considers flagrant immigration lawbreakers.  

Given the change in enforcement strategy, large employers (and those of lesser size) can no longer rely on a Goldilocks approach, as Ted Chiappari and I explain in "Goldilocks' Lessons for Dealing with Bearish Immigration Police," published on February 23 in The New York Law Journal.  Our "Goldilocks" article offers detailed precautions employers of all size should consider immediately to mitigate potential ICE-storm damage: 

1. Review  Immigration Compliance. Engage an experienced immigration law firm (other than the one used to prepare and submit the employer's immigration petitions and applications) to conduct a full-fledged 100% audit of all I-9s for current and former employees (including those who joined as a result of corporate acquisitions) and evaluate all other immigration-compliance obligations. 

2. Decide How the Auditor Should Present the Report.  Consider the pros and cons of an oral versus a written audit report.  An oral report advises management without creating what may be an unhelpful paper trail, if not all of counsel's curative recommendations are followed; whereas a written report, submitted to ICE if and when the company is audited, demonstrates good-faith compliance. 

3. Expect Bad News and Deal with It. Even the most persnickety employers who try their darndest to winnow out unauthorized workers are likely to discover that some segment of the workforce has no right to work and must be terminated while the I-9s of others must still be corrected.  Careless employers will fare worse.  Consider conducting the audit in phases, tranches or by worksites so that, if workers must be terminated, replacements can be hired or engaged through a temp agency, and then trained, all of which can occur in less disruptive ways than if a sizable roster of unauthorized employees were fired at once.  Also, be sensitive to the possibility that discrimination and wrongful-discharge claims or union grievances may be lodged, and behave in ways to minimize harm from those forms of employee blowback.

4. Develop and Enforce an Immigration Compliance Policy. Announce to employees and the world your company's immigration policy, namely, that you hire only authorized workers, do not violate antidiscrimination rules, and appropriately discipline those who fail to comply.  Consider other best practices to foster that central policy of maintaining an authorized-only, discrimination-free workplace, maybe even some best practices from IMAGE.

5. Place Controls on Employment-Based Immigration Sponsorship. Make sure the decision to petition for work-visa or green-card benefits on behalf of each foreign worker is justified in writing under objectively fair criteria.  Protect against cronyism.  Centralize due-diligence and signature authority concerning the factual representations made in all immigration submissions.  Require systematic record-keeping and compliance with other obligations such as posting and good-faith recruiting procedures.

6. Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.  Avoid the risk of deemed co-employment and of being tainted by the possible immigration violations of vendors and consultants.  Make sure immigration-related attestations made for the benefit of vendor employees are vetted for accuracy and that vendors are contractually required to adopt and enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.

7. Strengthen Global Mobility Management.  It's not just about complying with U.S. immigration laws.  Foreign countries' immigration statutes can be just as nasty when the rules are violated.  Other laws outside of the immigration domain, such as the Foreign Corrupt Practices Act, the new United Kingdom anti-bribery legislation, taxation, employee benefits, employment laws, and conflicts of law, as well as European Union and national regulations relating to privacy and electronic-data transmission, must also be honored.  Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.

In short, Goldilocks' behavior (lying dormant in a domain where cold-hearted ursine characters are likely to frequent) is no longer safe for prudent employers.  Beware the ICE Bears.

Well it’s about time. Although it took 17 years, Congress finally heeded the cry of employers and enacted legislation that authorizes the use of electronic signatures and the electronic retention of the ubiquitous “Employment Eligibility Verification” known as the Form I-9.

One month shy of the 17-year anniversary of IRCA (The Immigration Reform and Control Act of 1986), our national legislature enacted and President Bush signed Public Law 108-390.¹ While the new law was never officially trumpeted as environmental legislation, tree-huggers around the country (and beleaguered Human Resources professionals as well) are reportedly celebrating the paper-saving features of this new law. The new legislation is clearly a welcome development, but the transition to digital signatures and storage, as the present article will show, cannot occur until many unanswered questions are first resolved.

Public Law 108-390 (the Act) amends § 274A of the Immigration and Nationality Act (INA) [8 Code of Federal Regulations § 1324a] in two ways. When the Act takes effect:

1. Employers and newly-hired employees may make the respective I-9 attestations required of them by “a hand-written or an electronic signature.”²

2. Employers will also have a choice of the means by which to retain the Form I-9 ³ , i.e., employers may choose to keep on file “a paper, microfiche, microfilm, or electronic version” of the completed form.

The Act is effective no later than April 28, 2005, the 180th day after the President signed the law, unless the Secretary, Department of Homeland Security (DHS), or subordinate DHS officials, implement the Act before then by publishing final regulations in the Federal Register.

In order to avoid the confusion and widely varying approaches that would likely ensue if employers acted without implementing regulations, representatives of two immigration agencies within DHS, the Bureaus of Immigration and Customs Enforcement (ICE) and Citizenship and Immigration Services (USCIS) met on December 10, 2004 with a number of business organizations to address a variety of as yet unanswered questions.⁴ The meeting generated a number of issues and suggestions for future action, outlined below.

This author predicts that the regulation implementing digital I-9s will likely be published in final form only a few days or weeks before April 28, 2005. Thus, employers, for now, must be prepared to consider several issues and possible strategies as they embark on the Digital I-9 Superhighway.

1. What Should Employers Do with Their Huge Inventory of Current I-9s?

Employers pressed for office space may ask whether the Act allows for conversion of existing paper I-9 files into digital scans. Presumably, the permission granted in the Act to maintain an “electronic version” of each employee’s Form I-9 could be read to include pre-existing paper I-9s converted after April 28, 2005 into a digital format. While the answer for now remains unknown, employers may wish to put our requests for proposals and secure bids from vendors on the application features and cost of digital conversion.

Employers should also consider whether all steps have been taken under existing law to remove and discard original Form I-9s that are no longer subject to the I-9 retention rule. Assuming that there is no pending or actual threat of a government investigation or a discovery demand in litigation, Forms I-9 are no longer required to be retained as of the later of one year from date of employee termination, or, three years from date of hire.

Employers should also consider performing an audit of retained I-9s and taking good faith steps to correct Forms I-9 that are found to be out of compliance with regulations⁵. Moreover, with the advent of the Sarbanes-Oxley Act (Public Act 107-204) and the recent amendment of the U.S. Sentencing Guidelines applicable to corporate defendants, employers (in consultation with legal counsel) may decide that an audit of I-9s is perhaps more than merely voluntary and recommended but mandatory and required for all but the bold and reckless.⁶

Employers should also be aware of the administrative statute of limitations applicable to I-9s: Five years from the first date of hire (in instances where no I-9 was ever prepared and maintained); or, five years from the date when an I-9 was prepared correctly and completed fully.⁷

2. After April 28, 2005, Will Scanning an Original Paper-Version of a Signed I-9 and Discarding the Paper Version Be Allowed?

Again, no one yet knows whether the permission granted in the Act to retain an electronic version of the Forms I-9 extends only to those forms which also comply with the new “electronic signature” requirements, or, whether hand-written signatures can be scanned and preserved instead of maintaining the original paper-based, signed version.

From the perspective of government immigration enforcement authorities and prosecutors, however, digital preservation of I-9s will likely only be allowed for electronic signatures that provide a ready basis for prosecution of false statements and other immigration crimes committed in the I-9 context. Thus, this author predicts that the scanning/discarding of hand-signed I-9s will not likely be treated as adequate compliance.

3. What Standards Will the Government Adopt for Electronic Signatures and the Electronic Retention of I-9s?

Business representatives at the December 10, 2005 meeting urged ICE and USCIS to refrain from adopting specific technological standards that may fall prey to obsolescence over time but instead to refer to an already-accepted standard such as the Federal Rules of Evidence. While the Federal Rules may change over time, as technologies, judicial interpretations and statutes change, employers will likely enjoy the greatest degree of flexibility if the I-9 technologies ultimately adopted by employers are likely to avoid the fate of the Betamax video-recorder and the 8-track tape player.

Whatever the standard ultimately adopted, the government’s immigration agencies and prosecutors will want to ensure that they will be able to detect and confirm whether electronic tampering has occurred. The challenge, therefore, of confirming the tamper-free condition of digital I-9s presents a different and possibly more difficult obstacle than that presented by paper I-9s.

4. How Will Existing I-9 Procedures Be Integrated with Forthcoming Electronic-Signature/Retention Regulations?

Current immigration regulations cover substantial turf. They allow for dispensation from I-9 compliance in limited circumstances, for example, when re-hiring employees who had a reasonable expectation of continued employment, or transferring I-9 liability and physical possession of the I-9 forms to a successor or reorganized employee. Current regulations also (1) allow the employer to decide whether or not to make and retain copies of documents confirming identity and work permission, (2) prescribe rules on re-verifying the continuing employment authorizing for workers with time-limited work permits, and (3) outline procedures for compliance with a government investigator’s demand to produce I-9s for inspection in the course of an audit. The forthcoming digital I-9 regulations must address these areas of intersection with the rules adopted in an era of paper I-9 forms. For now, however, employers should use the waiting time to reevaluate their I-9 compliance practices and decide just how far and how fast they intend to drive down the Digital I-9 Superhighway.

5. Will the Government Also Publish a New I-9 Form and a Streamlined List of Acceptable Documents When Issuing the New Digital I-9 Regulation?

In a perfect world, DHS’s immigration agencies would simultaneously issue a new Form I-9 and a Congressionally-mandated shorter list of acceptable documents of identity and employment eligibility when publishing the new electronic I-9 regulation. With a nod to Otto Von Bismark, the German Prussian politician, this writer suggests, however, that not only politics, but also government rulemaking, involves “the art of the possible.”

Although theoretically possible, if the history of delayed rulemaking⁸ offers any basis for prediction, then publication of a new I-9 form and shorter list of acceptable documents is not very likely by April, 2005. This means that employers desiring to go paperless may be required to adopt digital I-9 procedures in at least two phases. The first phase would entail a transition from the paper version of the form to an identical, digital version that also enables electronic-signature capability. The second phase, or later phases, may then entail the wholly digital capture of information and e-signatures in a searchable database.

6. What Software Applications Are Recommended When Driving down the Digital I-9 Superhighway?

The law of “employer sanctions” – of which I-9 regulations form only a part – has developed substantially since IRCA's enactment in 1986. Numerous agency opinion letters, subsequent laws, and administrative and judicial decisions have provided answers to many questions not fully developed in the applicable regulations. Despite these developments, the I-9 form has changed only once since 1986, and not again in the 12 years since 1991.

The optimal electronic version of the I-9, therefore, would be interactive and include expert systems that take account of the evolving body of employer-sanctions law and prevent the completion of the form with incorrect or legally insupportable answers or signatures. The form would also be searchable across all data fields, and fully integrate with other popular payroll and HR software applications.

In the coming months, HR professionals can expect to be deluged by software product offerings that promise to simplify I-9 procedures, eliminate forests of paper files, and make legal compliance all but a few mouse clicks away. This author’s advice: Proceed slowly, thoughtfully and in step-at-a-time fashion. Take a lesson from the history of how other government agencies transitioned from a paper-based to a paperless world. Perhaps helpful, early guidance can be gleaned from an examination of federal agencies’ actions in implementing the “Electronic Signatures in Global and National Commerce Act” (P.L. 106-229) and the “Government Paperwork Elimination Act” (P.L. 105-277), as well as the Office of Management and Budget’s e-Government Strategy.

Until the successful vendors are sorted out, and the government publishes its technical parameters, however, the best interim way may be a simple, internal, proprietary system that adjusts to the needs and capabilities of the particular employer. Whether a PDF-based, easy solution will ultimately work, however, must await the government’s no-later-than-April rulemaking.

* * * * * As has been seen, while the Act has been passed and planning has begun, the I-9 Superhighway remains more a concept than a reality. Electronic diamond lanes, toll roads, car-pooling and road-testing all must yet occur. Employers should not sit on the sidelines waiting for the ribbon to be cut and the highway opened. HR associations and trade groups should join the bandwagon of business interests and payroll administrators who are urging the federal government to allow speed and maneuverability on this digital roadway. Whether your company is a road-maker or just a bystander, this author suggests you make sure your business is ready for the ride and the road ahead.

^1. Click here for the text of Public Law 108-390.

^2. Employees are required to complete section 1 of Form I-9 no later than the first day of hire and attest (by checking off one of three boxes and signing and dating the section in the spaces provided) to the individual’s particular U.S. citizenship or immigration status and confirm the right to work in the United States. Employers must confirm in no less than three days from first hire, by completing and signing Section 2 and thereby attesting that the just-hired employee presented acceptable and seemingly genuine original documents that relate to the particular employee and confirm employment eligibility in this country. For reverification of the work authorization of existing employees with time-limited employment authorization, employers must sign an attestation (before the employee’s current work permission expires) confirming that the same individual again presented an original document or documents authorizing a new grant of employment permission.

^3. A “fillable” version of Form I-9 can be found at: http://uscis.gov/graphics/formsfee/forms/i-9.htm.

^4. The author expresses appreciation to attorney Linda Dodd-Major, formerly the Director of Office of Business Liaison, Immigration and Naturalization Service, for background information on this meeting.

^5. For a list of questions that employers and their counsel should pose when considering an I-9 audit, see A. Lamdin, M. Patrick, R. Gump and A. Paparelli, “When Uncle Sam Knocks: Representing Employers Who Face or Fear Government Investigators,” Vol. 2, 1997-98 Immigration and Nationality Law Handbook (American Immigration Lawyers Association).

^6. For an article on Sarbanes-Oxley Act and the new corporate sentencing guidelines, see R. Morvillo and R. Anello, “Corporate Compliance Programs: No Longer Voluntary,” New York Law Journal 3 (December 7, 2004).

^7. United States v. Curran Eng'g Co., Inc., 7 OCAHO no. 975, 874, at 892 93 (1997), 1997 WL 1051469.

^8. See, e.g., A. Paparelli, Second Open Letter to the USCIS Ombudsman, Prakash Khatri, dated May 7, 2004 (available at http://www.nationofimmigrators.com ) asked that the Ombudsman pressure USCIS to reduce its other, less-visible backlog, namely, the year-long list of unpublished regulations.

Click here for text of the law