Pete Wright:
Welcome to Human Solutions. I’m Pete Wright. Immigration is one of the fast-moving corners of HR right now, which makes this a tricky episode to record. Anything we say about a specific rule could be out of date by the time you actually hear it. So we’re not going to chase so many headlines today. Instead, we’re going to try to give you a framework for the next few months. What actually lands on an employer’s desk? Where do the common mistakes hide, and how do you keep up without losing your footing?

My guests today are Shiva Karimi, Chair of the Immigration Practice Group at McLane Middleton, and Kallee McGraw, Senior HR Services Coordinator at AIM HR Solutions.

Shiva Karimi, welcome. Thank you for being here today.

Shiva Karimi:
Thanks, Pete, for having us.

Pete Wright:
I’d like to start with your famed Immigration 101. Can you give us the simplest version of where we are right now? What are the big categories that we need to be thinking about? And how much of this does an employer really need to understand?

Shiva Karimi:
Right. Oftentimes an employer doesn’t need to understand any of it, really, but having that framework, I think, is so useful when you’re dealing with these documents and trying to complete an I-9 and doing all the things that employers are supposed to do. So I like to explain Immigration 101 as immigration in three different buckets. And this is from my perspective, where I represent mostly employers. There are so many other categories of immigration that don’t fall within this framework, but the idea is you have to have permission to come into a particular country. You can’t just show up and walk in and do whatever you want. And the permission, again, in my limited world, is three buckets.

So you have non-immigrants. These are individuals who come into the US for a particular purpose and for a specified period of time. So for example, students. They come in for four years, they study, they get a degree, they’re done, they leave the United States. A non-immigrant visa requires mostly non-immigrant intent. It can be work visas, it can be a visitor’s visa to come in and visit Disney World, any of those things. But those are temporary.

And then you have immigrant visas, which is a green card. You can come into the United States for a permanent period. You can live and work in the United States permanently. And unlike the non-immigrant visa, you have to have immigrant intent. So you’ve got to want to stay in the United States and live in the US. And if you don’t, you can lose that status. So there’s some fragility that comes with the green card. You can lose the green card if you don’t live here. You can lose it if you have criminal issues. So it is permanent, but it can go away.

And then we have citizens. We heard a lot about birthright citizens recently. That’s a big topic of conversation. Naturalized citizens, people who have their green card for a certain time period and take a civics test in English, and they can become a citizen. And those are people who can live in the United States permanently. They can leave for 10 years, they can still come back in for a day if they want to, but they belong. They’re a member of this country.

So those are the three buckets. And like I said, there can be asylees and refugees, and we’ve heard a lot about Temporary Protected Status lately. We have parole statuses. So those are all different types of things as well, but I like to give people a framework so that they understand that when you’re coming to the US, you need this permission. What does that permission look like? What bucket are you in? And what does that mean as far as what you can do in the US and how long you can stay?

Pete Wright:
Okay, which takes us, from our employer’s perspective, to the I-9. And for that we turn to Kallee. Kallee, you have looked at thousands of I-9s and are part of the AIM team supporting employers with their I-9s. And so my question for you is twofold. What are the common mistakes that you see in the I-9? And two, after looking at thousands of I-9s, are you okay?

Kallee McGraw:
To answer your second question first, not really. When I wasn’t on my team, I’d have dreams about them and just wake up being like, I-9s. But anyway, I’ve seen a lot of errors, and it’s interesting because looking at an I-9, you might think that it is pretty simple and straightforward, but it’s such a technical form, and so many pieces of it have to be completed fully and correctly.

I’ve seen expired versions of the form that are used. And sometimes the previous version of the form is extended, and it’s okay to do that, but even outside of that window, we’ve seen employers using forms that are no longer active. So it’s important to keep an eye on that.

And then also I’ve seen forms that are completed outside of the allowed timeframe. So Section 1 needs to be completed by the employee on or before their first day or their date of hire. And then Section 2 needs to be completed within a three-day window from the date of hire. So we do often see employers completing those late.

And then also just missing information from Section 1. And Section 1 is where the employee is supposed to be filling out the form. So as an employer, it’s important to just be checking and making sure their full name’s provided, their date of birth is provided, their address, they’re signing it, they’re putting the date that they completed the form, because we do often see that missing, and it’s something that I think could be easy to overlook.

And then Section 2, the piece that the employer completes. We’ve seen incorrect document combinations provided. So employers listing information for a List A document and a List B document, which isn’t needed. It’s usually a List A or a combination of B and C documents. So just being mindful of that. And also just making sure that you’re adding all the correct document information, and that the employer, or your employee that is completing the I-9, is providing all the necessary information there as far as dates, their job title, full name, signatures, because I think it is easy to just skip a step. But it’s definitely important to make sure that everything is being provided.

Pete Wright:
Well, it leads to, I think, the complications of the application process, which can vary in a number of ways. And we want to talk about technical versus substantive violations, which, for somebody who doesn’t speak the language, sounds like we’re getting into semantics territory, but we’re very much not. Shiva, what is the difference between a technical and a substantive violation in this process? And why do I worry about one more than the other?

Shiva Karimi:
Right. So fairly simply, a technical violation is one that generally will not result in a fine if there’s an I-9 audit. So if the government comes in and there’s an I-9 audit to the business, the technical violations can be corrected within 10 days. Substantive violations are where the fines come in. So you’re fined based on each I-9 that has a substantive violation. So that’s why we care.

Pete Wright:
That’s why we care.

Shiva Karimi:
That’s why we care.

Pete Wright:
Okay. In terms of technical, this is the rubber-meets-the-road section of the immigration conversation. So what has changed this year?

Shiva Karimi:
Yeah. So keep in mind that the purpose of the I-9 is to deter unlawful immigration. So one of the draws of immigration to the United States is people are looking for work, which is a wonderful thing. But the government says, well, if you’re going to come in and do that, again, we’ve got to go back to our non-immigrant visa categories, our immigrant visa categories. You’ve got to do it following the rules. You have to have that permission. And so the I-9 was implemented in order to prevent people from coming in illegally. So all employers have to complete a Form I-9, and when they do so, there are certain rules. As Kallee was just very nicely laying out, you’ve got to do it within a certain time period.

So in the past, the substantive violations were very logically linked with those failures that would lead to an employer hiring somebody who wasn’t authorized to work. So if you didn’t fill it out on time, you might have somebody working for you. If you weren’t looking at the appropriate document, making sure they were employment authorized, that would be a substantive violation.

Well, what happened was, ICE has this fact sheet that they publish online. It’s on their website. And in March of this year, and then again in August, suddenly it just changed. The website just changed. The substantive violations, the technical violations changed. There was no notice. There was no rulemaking. It just happened.

And what they did is they changed a lot of things that were previously technical violations, which logically should have been technical violations, like you forgot to put the employee’s name on page two or Supplement B just to show that it’s part of the same I-9. Now suddenly that has become a substantive violation. And so it’s important for employers to go and look at those and understand where those changes have come in, because I think that will really reinforce to employers how important it is. And as Kallee was saying, you can make a lot of errors on an I-9. It’s really easy to. It’s a very technical form, and you’ve got to be even more vigilant now with those.

Pete Wright:
Well, especially if you, in the HR process, have filled out a lot of I-9s and you have an experience with it that, like you said, changed overnight with no awareness. So switching then to the audit experience. What does it mean for an employer facing an audit today compared to, let’s say, before August?

Shiva Karimi:
Yeah. So what generally happens is the HSI agent, Homeland Security Investigations agent, will come in. And they’ll give the employer a notice, a notice of inspection and a subpoena, and say here are the documents that we want. And it’s a list. It’s a list of a whole bunch of corporate documents, payroll records, and importantly, of course, the Form I-9s. And then you have to provide those, usually within three days. There are extensions and things that you can do. But once you provide those, then the agent will go through them and tell you, here are the technical violations, go ahead and correct those. You’ve got 10 days to do it. And then after that, they’ll look at the substantive violations, and they’ll determine based on that what the fines are going to be in that situation.

Of course, before all of that, you’ll have to verify that anybody who’s not authorized to work, if they don’t have the appropriate I-9 documentation, they need to show that they’re authorized to work or you have to terminate them. So those are the bad things that can happen during an I-9 audit, the worst being you’re going to lose part of your workforce. And then technical violations, again, correctable. And then substantive violations, and those lead to fines based on how many.

Pete Wright:
I know this isn’t a situation where Homeland Security is going to present a menu of fines in particular, but can you give us a sense of stakes for a suite of violations that you experience? What are we talking about here right now?

Shiva Karimi:
Yeah. So it can be a few hundred to a few thousand per I-9 violation, and it can even go up from there if there have been previous violations, or knowing and willful violations. And the way that is determined is based on a couple of things.

So first of all, you can get a warning if it’s not particularly egregious. Although it’s really interesting, because the August update changed some of that and took away some of the agent’s discretion to give warnings. So now there are some situations where they can’t even give you a warning even if they want to. So that’s one option, one possibility.

And then after that, they’ll look at how many I-9s. So the more I-9s you have that are in substantive violation, then the higher you start with. And then based on what number you start with, they’ll look at a number of factors in determining the fine per I-9. And those factors include things like the size of the business, the level of sophistication of the business, whether or not they’ve had previous violations, whether they’re knowing and willful. So all of those factors come into play.

Pete Wright:
What are their options? An employer finds a problem or a challenge. How do they fix it right away? Because it sounds like the department has made it more just sort of rote. Here’s something that’s a problem, we’re going to send you a bill. How do they fix it? How do you audit without creating a discrimination problem?

Shiva Karimi:
Yes, and you hit the nail on the head. On the one hand, we’ve got to audit these. We’ve got to make sure our I-9s are in compliance. On the other hand, we can’t just go and look at all of the I-9s of just the foreign nationals. We’ve got to look at everybody.

So internal audits are very important to do on a regular basis. I mean, this is one of the biggest things that I think employers need to do on a regular basis that many employers don’t do, is just the regular audits. Make sure the HR folks that are doing these audits understand them. They’re getting regular trainings. You’re doing an I-9 audit, and if you think that one particular location of a business, for example, has more potential for having I-9s with violations, then maybe you focus on that. So again, you’re not picking out foreign nationals, but you’re picking out a particular location. You’re saying we’re going to do the audit here.

And so when you do these audits, you’re going through the I-9s, you’re looking for technical and substantive violations, and you’re trying to address them in the best way that you can. And you can’t fix them. You can never fix an I-9 that wasn’t right in the first place. But what you can do is, for example, attach a note and say we did this audit across the board. We noticed that this particular signature was missing. We’ve asked this person to come in and sign it, but we’ve dated it, and we put a little circle around the initials, and we’ve explained that we’ve done this later on in time in an audit, and those were our best efforts to be compliant. And that will help when it comes to the fine. That’s one of the factors that’s taken into consideration.

Pete Wright:
If you were to weight the factors that go into consideration, how big is that one? And I’m just asking because I’m curious how amenable the department is to the mea culpa. Like, we recognize we screwed up on this signature. We recognize this form wasn’t quite right, and we’re really sorry. Here’s our fix.

Shiva Karimi:
Right. I really think it’s an overall. They look at all the factors. It’s the whole picture. And that’s just one of them. So if you’re really making efforts, you’re doing these trainings, you’ve got your audits in place, maybe you’re not a particularly sophisticated business, but you’ve done the best that you can. Maybe you’re not a huge business. That’s one big picture. You’re not a big, sophisticated business, but nonetheless you sent your HR person to an I-9 training, they came back, they said we’ve got 50 I-9s, we’re going to go through and review them all. That looks pretty good. And then you’ve got some huge, sophisticated business with tens of thousands of employees, and they didn’t bother to go check their E-Verify reports to look and see whether the government told them they’d better go check on a few of the I-9s.

Pete Wright:
Sure. What happens when an employee comes in who brings the wrong document, not the one they’re supposed to bring? I know Kallee brought up List A, List B. What’s the situation when the employee is not on the same page as you are?

Shiva Karimi:
Yep. So this goes to your point that you just made about discrimination versus completing the I-9 correctly. So you can’t say to the employee, look, I know you’re an asylee. I know that you have an EAD, an employment authorization card, and I know that it’s going to look like this. Go and get it and bring it for me. You can’t tell them what to bring you. So all you can do, like Kallee said, is you give them the list. Here’s List A, here’s List B, here’s List C. The document that you give me now doesn’t comply with any of these. Go and get another one. And they can choose which one they want.

So to directly answer your question, if they said they were going to bring one and now they brought another, fine, as long as it falls within the confines of that list. But if they bring you something that doesn’t comply with the list, then all you can say to them is go and get me a document that does. And you can’t suggest to them what document, even if you know exactly what it’s supposed to be.

Pete Wright:
Sure, sure. Sidebar. How do you handle successor liability? Say your company is acquired, and maybe there were I-9 questions, maybe there were immigration questions for the company before acquisition. Where does liability reside in that situation?

Shiva Karimi:
Thank you for asking. This is one of my pet peeves. So in these corporate transactions, there’s often a due diligence component for I-9s where the lawyers for the buyer are going to go and look at the I-9s that the seller has provided, or the seller’s going to audit them, or whatever the case might be. And that’s all fine. But the reality is that more often than not in that situation, the buyer can actually re-I-9 everybody from the beginning. It’s like the one opportunity, this golden opportunity. Throw away all those I-9s, do it all over again, starting from scratch.

Like I said, in an internal audit you can’t do that. All you can do is write this note: I tried really hard, I did my best, here’s what I changed. But here you get to start from scratch. And it’s such a golden opportunity, and so many folks in these transactions don’t want to do it because it’s burdensome. Especially, I mean, if it’s a hundred, two hundred, even five hundred employees and you tell me you can’t do it, then I’m going to shake you really hard and say no, you’ve got to do it.

Pete Wright:
Yeah.

Shiva Karimi:
But then I can understand, and sometimes it becomes impossible. But it really is a golden opportunity to make that correction, and you usually don’t get it. And especially if you know that those I-9s are going to be in rough shape, then it’s just a great opportunity to take. Unless, of course, there might be some reasons why you’re worried about doing that.

Pete Wright:
A grand clearing of old debts. Wow.

Shiva Karimi:
Yes.

Pete Wright:
All right. Let’s talk about E-Verify and remote verification briefly. Who actually has to use E-Verify, and where does remote verification fit?

Shiva Karimi:
Yes. So E-Verify is only required in a certain number of states, and for federal contractors, but it is also required if you want to have remote verification of your employee. So this started back during COVID. People weren’t coming to the office, people were being hired, and of course the rules before that were that you had to personally look at the documents that were presented to you for the I-9. You couldn’t just look at a picture or copy. And so those rules came into place, and one of the requirements for remote verification is that the employer must be enrolled in E-Verify. Otherwise they are not eligible for remote verification.

Pete Wright:
Okay. Now we get to our changing-landscape epoch of this conversation. How do you keep up? And I guess I’m asking this both broadly, but specifically to you, Shiva. Holy cow, how do you keep up with all of these changes that are happening overnight? And then when an employee’s work authorization can change while the card in their wallet looks great?

Shiva Karimi:
Yeah. It’s such a challenge. It is such a difficult place for employers to be put in. And again, it goes right back to what you were saying. Employers are trying hard to comply with the Form I-9. They’re trying not to be discriminatory. But for example, with what we saw recently with TPS, Temporary Protected Status is being eliminated systematically for almost all the countries now. There are only a few left that have TPS. And it was happening overnight, and then it was changing, and then it was changing back again. And USCIS was publishing updates, and they would say, oh, we’re going to give you three more days. This person is going to have employment authorization for three days. Okay, now it’s going to be five, now it’s going to be one. And it was just impossible to keep up with.

And the challenge that employers had in that situation is, to figure it out, you’ve essentially got to sort people by country. And that’s pretty discriminatory. I mean, you look at those rules, and they really clash with one another.

So it’s a challenge. It continues to be a challenge, it has been a challenge, and I think that employers are trying very hard from what I’ve seen. But you’ve got to reach out to counsel, and you’ve got to just say, I have this person from this particular country, what do I do? Or I have this huge group of people, and I don’t know what country they’re from, I don’t know what their authorization is, what can I do? And have your lawyer help you sift through so that you’re doing it in a way that you’re trying to do the right thing, but you’re trying not to harm the business and do the wrong thing by doing the right thing.

Pete Wright:
Right, right. So much of it seems to rest on your counsel’s caveat to figure out how to move forward. That tension that exists between these two bodies, especially when these changes happen so suddenly, seems incredibly challenging. Kallee, to you, as someone who looks at, say it again, thousands of I-9s, where should HR be checking for reliable, current information when you’re working through this process with AIM clients? What do you recommend?

Kallee McGraw:
It’s a great question. And I would say we do keep our clients updated with the HR Edge, that has a lot of updates of things that are changing. But also the USCIS website is a great place, especially for I-9s, just to get the latest version of the form, the latest rules. They have a pretty in-depth rulebook, essentially, so that is a really great resource to use.

Pete Wright:
Sure, sure. All right. Now our home turf conversation, the Massachusetts PROTECT Act. What is it? What’s changed in Massachusetts, and what should our employers be ready for? Shiva?

Shiva Karimi:
Yes. So it was just signed into law, and it’s only in a few other states. Oregon, I forget which other ones, maybe two or three other states. And essentially the idea is that if an employer is faced with an I-9 audit, then they must inform their employees in writing. Right now it’s 48 hours is the time period. And so it’s a burden on employers, but at the same time it gives foreign nationals who are in that situation some time to go and sort out their documents and figure out what they need to do, or that they need to do something. So I think it’s a burden, and I think it’s helpful, all at the same time. But that was just implemented in Massachusetts, so it’s just being rolled out, really.

Pete Wright:
Give me a sense of the context here. What would have happened before the PROTECT Act was signed into law? What is the worst case?

Shiva Karimi:
That’s a good question. So actually the employer wouldn’t usually tell the employee, and most of the time it was because they didn’t really know what to do. They were in a bad position. Had they done something wrong? So they had all of these factors, and so they didn’t typically run right out and tell their employees they were being audited. And it would create fear, whatever bad things that it would cause.

But now I think that one of the advantages of the PROTECT Act is that employers know exactly what they need to do, and it’s not their choice anymore. This is the procedure. Now we’re following the procedure. So everybody knows, everybody can go and get the documents that they need. So I just think it gives that clarity, which was really not there before. And maybe sometimes people didn’t even know why they were being asked for additional documents, or were they being targeted. And perhaps it helps with that discrimination component as well.

Pete Wright:
Okay. You’re watching the show. It’s a fine Sunday morning. You’ve got your coffee, and you reach the end and you think, oh my gosh, but 8 a.m. tomorrow morning, what do I need to do? Give me the top three things that I need to watch out for as an HR pro when I get into work on Monday morning. Shiva, you start.

Shiva Karimi:
Okay. So the one that we talked about, the technical and substantive violations. The one thing that I would tell employers to be aware of is compliance with electronic I-9 procedures. Those were things that it was really unclear whether they were technical or substantive. They were typically treated as substantive, but in the August 2026 update that I just mentioned, it’s clear that those are substantive violations. And I think that employers should really walk away with that in mind, because employers didn’t take all the steps necessary to comply with those procedures. They just kind of came into existence. It was kind of haphazard, but there are very clear rules in place. So if you have either of those two things that you’re doing, which you probably are if you’re an employer, then it’s important to make sure that you’re complying with those rules.

Pete Wright:
All right, Kallee, your turn. Give me one.

Kallee McGraw:
I would just say, again, keeping an eye on the HR Edge that AIM sends out, because we’ll keep you updated with everything you need to know just as things are changing, because right now it seems like they are constantly changing and unexpectedly. So that will give you a nice overview of everything, but also just the USCIS website will give you updates as well, just as things change. So I would just check in there as well.

Pete Wright:
I think that’s a really good point. And something you said, Shiva, that there is nothing haphazard about these guidelines anymore. The complaint that I have heard in my HR circles is the changes feel haphazard, but the guidance is no longer haphazard. Like, it feels like we’ve been surprised a lot, but the guidance is very specific. Is that a fair assessment?

Shiva Karimi:
I think so. I mean, it’s certainly cleared up things that were not clear in the past. So yes, I think that is quite right.

Pete Wright:
And I’ll give you a shot. I asked for three Monday morning, 8 a.m. things, and now I have two. Shiva, do you have one more?

Shiva Karimi:
Yeah, I think I would just say general I-9 internal audits, and just making sure that your HR team is training and understanding how to complete those I-9s. I think this is what Kallee had as her first point. I think that’s so important, more important now than it ever has been before. There are increased I-9 audits, increased enforcement activity. So very important for employers to keep that in mind. And you have to do an I-9 for everybody. Even the person who started the business 50 years or 40 years ago, whatever it was, or even the owner’s kids who come in every once in a while and work for the business.

Pete Wright:
Sure. Right. There is no statute of limitations.

Shiva Karimi:
Right.

Pete Wright:
Okay. All right. Very helpful. It’s certainly helpful for me, I hope for others. We have some resources that you will find in the show notes. AIM has a free I-9 checklist, and I’ll have the link for that in the show notes. You definitely should check it out. Is your I-9 paperwork audit ready? Very clear. And we also offer I-9 audit and remediation services, which I’ll have the link in the website there too, if you want to be even in remote orbit of the world-famous Kallee and the thousands of I-9s that she has seen. That’s going to be how you do it. Thank you both so, so much, Shiva Karimi and Kallee McGraw. Thank you for being here and helping illuminate this so briefly. I know you could have done it for a week, but I appreciate you doing it for just our 30 minutes together.

Shiva Karimi:
Thanks so much, Pete.

Kallee McGraw:
Yes, thank you.

Pete Wright:
Next month we’ve got Caregiving in the Workplace with Brooke Thomson, our own CEO, and Sadie Funk, National Director for Best Place for Working Parents. That’ll be your Lunch and Learn for November 10th, 2026. We will see you there. Thanks, everybody.