The I-9 Audit Process Is A Game -- Alas, It Is Football, Not Soccer

by Angelo Paparelli

The I-9 Audit Process is a Game -- Alas, it is Football, not Soccer

Thumbnail image for soccer suit 3.jpg[Blogger's note:  Today's guest column is by my colleague at Seyfarth Shaw, John Quill. Three abiding passions animate John -- love of family, sports (hockey in particular) and immigration law.  His passion for sports and frustration with U.S. immigration law's employer-sanctions enforcement regime combine today to bring us this insightful and wistful post.] 


The I-9 Audit Process is a Game


Alas, it is Football, not Soccer

By John Quill


My favorite professor in law school, Bill Pizzi, taught criminal law and criminal procedure.  During my “recent” tenure as a law student, Professor Pizzi wrote an article comparing the U.S. criminal trial system to American football -- rife with arcane rules that penalize the most well-intending participants.  In contrast, wrote professor Pizzi, the European criminal trial system more closely mimics soccer (or "Football" to the rest of the world), in that there are fewer rules, the pace continues with fewer penalties and interruptions, and a general principle of maintaining flow of the game prevails.  (Professor Pizzi’s article became the first chapter of his book, Trials without Truth.)

Two recent events served to jog my memory on Professor Pizzi’s theory of criminal trial systems.  

  • First, my daughter and I decided to choose a Premier League team to root for, as soccer is her first love and she wanted to adopt  a team in one of the top professional leagues. (After a highly analytical process, we chose Tottenham Hotspur as our team.  The main criteria included their London home, and the fact that, “they have a cool name.&rdquo  
  • Second, I recently completed another I-9 audit process for a client employer, and was reunited with the joys of engaging with U.S. Immigration and Customs Enforcement (ICE) and the game of “gotcha” that prevails throughout this process.

Watching soccer played at its highest level has given me an appreciation for why it is called “the Beautiful Game.”  The sport offers a near-continuous flow, with supreme athleticism on constant display.  The rules seem to serve more as guidelines, and the officials do not interrupt the action to measure the exact spot where a penalty took place, or use a small army of officials to maintain military-like precision on the field.  Rather than lengthy explanations for transgressions, a simple system of yellow and red cards informs viewers, regardless of language barriers, of the severity of the foul that was committed.  An offsides player is flagged by the assistant official, but play is only stopped if that player gains an advantage.  Otherwise, no foul is called and play carries on uninterrupted.

Contrast soccer with American football.  According to a Wall Street Journal article,  American football offers roughly 11 minutes of actual game action, in a three hour time span and 60 minutes of game clock time.  The remaining time is filled either with commercial timeouts, player huddles, referee conferences, precise ball placement after each play, and players lining up in a formation that resembles the 87th Regiment, 10th Division of the U.S. Army.  

Moreover, the National Football League’s rulebook, available for all to peruse on the league’s website, runs some 120 pages of intricate detail.  In addition to the collection of Byzantine rules, the rulebook contains a definition of “illegal.”  Professional football players should be assured that committing the penalty of “illegal formation,” according to the rulebook, “is not meant to connote illegality under any public law or the rules or regulations of any other organization.”  (Presumably this means that the 11 players responsible for the illegal formation are also not subject to prosecution for conspiracy to commit an illegal act.)  Teams can be penalized for failure to place the proper number of players on the line of scrimmage, or for having too many players in the team huddle prior to the commencement of play.  

This brings us to the I-9 audit process.  ICE is charged with conducting I-9 audits and sanctioning employers who violate the process.  Regular readers of are familiar with the draconian Form I-9 audit system of employment-eligibility verification, featuring both to the complex regulations, and ICE’s punitive enforcement policies.  

The presentation of I-9 compliance offered by U.S. Citizenship and Immigration Services (USCIS) creates the illusion of a noble process where employer compliance is simple.  According to the USCIS's I-9 Handbook for Employers, “Form I-9 helps employers to verify individuals who are authorized to work in the United States.” (Emphasis added.)  The USCIS Office of Business Liaison has published a document, “The I-9 Process in a Nutshell,” which states, “IRCA’s (the Immigration Reform and Control Act) core prohibition is against the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States.” (Emphasis added.)

The vision of IRCA as enacted in 1986 has evolved to its current form, a complex system where ICE’s main goal appears to be to comb through I-9 forms and find paperwork errors which have no bearing on whether or not an employee’s identity and work authorization were verified.  These errors do not increase compliance with the goals of IRCA; rather, they allow the agency to penalize well-intentioned employers with substantial, sometimes crippling fines.  Picture a football field filled with seven referees, each gazing at the players on the field and ready to throw a flag to penalize a foul found somewhere within its 120-page rulebook.

Soccer and football (as well as football’s distant cousin, rugby), are commonly thought to have all descended from the same simple, noble Greek game called Harpastum.  However, as each sport evolved, football became reliant on precision and rules, while soccer stayed simple (and “beautiful,” according to the rest of the world). 

ICE’s I-9 audit procedure has taken a similar divergence from its original goals.  Emboldened by the Obama Administration’s April 2009 directive that it would increase worksite enforcement, ICE has created a back office, whose agents are tasked solely with scrutinizing each I-9 form completed by an employer, with the purpose of finding errors small or large which can be used to ratchet up fines against an employer, regardless of an employer’s general level of compliance and good faith.  

ICE will fine an employer for the following, NFL rulebook-style transgressions: Signing the I-9 form in Section 3 rather than in Section 2; failing to ensure that a permanent resident employee filled in his or her Alien number in Section 1, even when the same Alien number appears in List A in Section 2; failing to write the full address of the worksite in Section 2; and listing identity and employment authorization data in the wrong section of the form.

soccer suit.jpgNone of these violations has any bearing on whether the employer verified the employee’s documentation of identity and employment authorization.  Rather, these are just a few instances of the more than a hundred ways where an employer can make a potentially costly mistake in completing an I-9 form.  This type of cat-and-mouse game does nothing to further the main goals of IRCA, and only serves to tie up employer resources at a time when our economy desperately needs increased productivity; results in millions of dollars in needless fines; and prevents ICE resources from finding the true bad actors who exploit unauthorized aliens.  

Perhaps it is unrealistic to expect ICE to turn the I-9 audit process into a “beautiful game” of continuous flow until a harmful penalty is committed. Still, I invite ICE auditors, their attorneys and higher-ups in the agency to watch Manchester City play Arsenal, or Real Madrid face off against Valencia, and apply some of the lessons in play to their own game.

About The Author

Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.

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