Katherine (Kacey) M. Coleman, Esq.

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1 Katherine (Kacey) M. Coleman, Esq. 2014

2 "ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE s longterm strategy to address and deter illegal employment." -John Morton, former ICE Director

3 April Directed focus federal government on I-9 noncompliance worksite enforcement strategy. Shift in emphasis from the detection apprehension of illegal workers to targeting employers Audit entities of all sizes representing all industries Entities from Abercrombie & Finch and GE to small Subway franchises have been fined for I-9 violations.

4

5 FY audits FY2009-1,444 audits FY2010 2,196 audits February ICE issued Notices of Inspection to 1000 employers FY 2012 >3,000 audits FY >3,900 cases were initiated with 3,127 audits *Can be given as little as 72 hours notice prior to an investigation

6 What is the I-9 and why is it important?

7 The IRCA requires employers to complete Employment Eligibility Verification Forms (the I-9) for all employees to verify eligibility to work in the United States Employers must complete the I-9 every time they hire an individual to perform labor or services in return for wages or other remuneration

8 Hired before November 7, 1986, who are continuing in employment Employed for irregular or intermittent casual domestic work in a private home Who are independent contractors Providing services employed by a contract service provider Not physically working in the U.S. *You may not contract for the labor of an alien if you know that alien is not authorized to work in the United States

9 Two Primary Sections: Section 1 Employee Information and Verification Section 2 Employer Review and Verification

10 Basic information about the employee The Bureau of Immigration and Customs Enforcement ( ICE ) requires that Section 1 of the I-9 form be completed before work commences

11 If the employee fails to sign or attest the employer will be fined by ICE Although responsible for ensuring complete information in Section 1, an employer may NOT require employees to produce documents to verify the Section 1 information that is provided If the employee does not sign and attest to Section 1: No reason to proceed to Section 2 No obligation to continue to employ the individual

12 Attestations by the employer regarding documents presented by the employee Section 2 is to be completed within 72 hours of work commencing The law provides grace periods to replace or obtain missing documents

13 Must give the new hire the choice of what documents to present Individual who actually reviews the documents must sign and date The person who examines the documents and the employee must both be physically present at the time documents examined

14 There are three types of documents: List A - Documents that prove identity and employment eligibility No other documents necessary List B - Identity documents List C - Employment authorization documents Obligation to review documents not triggered or permitted until a person has been hired for a position

15 Employee is entitled to submit a document or combination of documents of his/her choice (from Lists on I-9 form) to verify identity and work eligibility Employee must present original, unexpired documents Exception: certified copy of a birth certificate; expiration on face of document has been extended

16 You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) within three (3) business days of the date employment begins You must apply these practices uniformly to all employees

17 If individual s document has been lost, stolen or damaged, you may present a receipt for application for replacement document Must have indicated in Section 1 already eligible to work in U.S. Replacement document must be presented within 90 days of Date of hire Date employment authorization expires - reverification A receipt is never acceptable for employment lasting less than 3 working days

18 It is unlawful for anyone to knowingly engage in any of the following activities: To forge, counterfeit, alter, or falsely make any document To use, attempt to use, possess, obtain, accept, or receive any forged, counterfeit, altered or falsely made document To use or attempt to use any document lawfully issued to a person (incl. a deceased individual) other than the possessor To accept or receive any document lawfully issued to a person (incl. a deceased person) for the purpose of complying with I-9

19 Required to reverify employment eligibility when: Employment authorization indicated in Section 1, or Evidence of employment authorization in Section 2 has expired May also utilize for employees rehired within 3 years of the date their I-9 form was originally completed

20 Does not apply to List B documents List A or C documents expired Do NOT reverify U.S. Citizens Noncitizens nationals Lawful permanent residents with Permanent Resident Card

21 Must be completed no later than date employment authorization documentation expires Receipts showing application for extensions of expired employment authorization documentation are not acceptable

22 Employees are NOT required to present a new version of the same document that was presented to satisfy Section 2, but has subsequently expired Any document or combination of documents acceptable under Section 2 may be presented for reverification Employee choice

23 If discovered Immediately have employee complete Section 1 and submit the documentation required under Section 2 Date the form when completed never post-date If employee does not provide acceptable documentation Terminate employment Otherwise, subject to knowingly continuing to employ an unauthorized worker

24 Must retain the I-9 form of each employee either for three (3) years after the date of hire or for one (1) year after employment is terminated, whichever is later All current employees hired after November 6, 1986 must have an I-9 on file for the full term of their employment plus the applicable retention period Best Practices: Retain all employment records, including I-9, for minimum of 5 years after termination of employment

25 May make photocopies - but not required If you make photocopies - must keep them with the I-9 form Must be practiced with ALL employees Retention requirements do not apply to photocopies

26 Employers may store: Paper Microfilm/Microfiche Electronically

27 Keep I-9 forms separate from other personnel records I-9 audit forms readily available Easier to conduct periodic self-audits of your compliance status Easier to manage updating and reverification

28 Paperwork Violation $110 - $1100 for each individual for whom verification was improper or omitted Unauthorized Employee; Discrimination Violations $375 - $3,200 for each unauthorized worker $3,200 - $6,500 for each unauthorized worker, if already subject to cease and desist order $4,300 - $16,000 for each unauthorized worker, if subject to more than one order and/or a six (6) month prison sentence

29 INS proposes a penalty by issuing a Notice of Intent to Fine, the employer has the right to a hearing before an administrative law judge, or ALJ, who ultimately sets the penalty If request for hearing is not received within 30 days, the penalty will be imposed and a Final Order will be issued Penalty becomes final and unappealable

30 You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual.

31 2010 ICE settlement with Abercrombie & Fitch Not for the hiring of unauthorized aliens For compliance errors in their electronic I-9 verification system Agent in charge - Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance."

32 If you have done the following: Kept copies of all supporting documents Cured errors within 10 days of notice Unless proof had actual knowledge of the unauthorized status of the employee

33 Only applies to technical not substantive violations Doesn t apply if: No I-9 at all; Section 1 attestation box incomplete; and Section 2 documents incomplete

34

35

36 Enforcement of I-9 compliance is an ongoing focus area for ICE ICE conducts its own audits, aka, administrative inspections

37 Initiated by service of a Notice of Inspection ( NOI ) upon an employer, which compels the production of I-9 forms Employers are given at least three (3) business days to comply ICE may also request supporting documentation such as a copy of the payroll, a list of current employees, article of incorporation and business licenses

38 If ICE finds a technical or procedural violation, the employer has 10 business days to correct Employers may be fined for all substantive and uncorrected technical violations The penalties and fines previously discussed may also come into play

39 Those who utilize electronic (versus manual) storage e.g. Abercrombie & Fitch. Compliance regulations for electronic storage requires employers to retain an audit trail (record) showing who has access the system and the actions performed on the system when I-9 Created, completed, updated, modified, altered, or corrected Ensure compliance with state And federal laws on protection of personal information Failure to re-verify continued employment eligibility for employees working under temporary approvals

40 FY $6.9 million FY $13 million If receive Notice of Intent Fine (NIF) Appeal to the Department of Justice/Office of the Chief Administrative Hearing O (OCAHO) Recent OCAHO decisions have substantially reduced ICE fines

41 Basics for conducting an I-9 self-audit

42 Designate someone to conduct the audit This could be someone internal like general counsel or an HR representative This also could be someone external like legal counsel or a contractor hired just for the audit

43 First, generate a list of all active employees. This is the initial scope of the audit and one of the first documents ICE will request Second, generate a list of all employees terminated within the last three years. This is the audit s secondary scope and should be kept on file. These employees are still within the range of potential liability Don t forget to include employee start dates in your lists

44 For Section 1: Does the employee s name match the name in the personnel file and related documents? Is the employee s address, DOB and Social Security information completely filled out? If the employee does not yet have a SSN, is the box marked none?

45 Section 1 (continued): Did the employee sign and date this section? If someone assisted the employee in filling out this section, make sure the preparer/translator s certification is filled out and signed

46 For Section 2: Examine either (1) a document from List A, or (2) a document from List B and a document from List C If the List C document was a Social Security Card, check whether it contained either (1) the notation, NOT VALID FOR EMPLOYMENT ; or (2) the notation, VALID ONLY WITH INS AUTHORZATION

47 For Section 2 (continued): If it says, NOT VALID FOR EMPLOYMENT, it is not a valid List C document If it says, VALID ONLY WITH INS AUTHORZATION, then the employer should ask for another INSissued employment authorization document (e.g., the I-797 H1-B approval notice) Do not commit document abuse

48 For Section 2 (continued): If a List A document was presented, make sure all relevant spaces have been filled Example: An unexpired, properly filled out foreign passport with an I-94 Make sure the employer certification is completely filled out and signed, including name, title, company name and date

49 For Section 3: Make sure the I-9 was reverified on or before the date the work authorization expired Make sure the final attestation has been dated and signed Make sure the I-9 was completed within three days of hire

50 See the USCIS s website for answers to questions such as: How to correct a mistake on an employee s I-9 form What to do if an invalid version of the I-9 form was completed on the date of hire What to do if an employee does not sign in the correct space in Section 1 of the I-9 form

51 See the USCIS s website for answers to questions such as: Whether a preparer/translator help correct a mistake on an employee s I-9 form What is the best way to make a correction if a notary or authorized representative make s a misstate on an I-9 form Best practices for correcting forms and limits on what an employer can correct

52 Draw a line through the incorrect information Enter the correct information Initial and date the correction If a translator is used the translator will also need to initial and date the correction next to the employees initials Whiteout should never be used If have - attach explanation and sign and date

53 Everyone should now be using the new I-9 form released in March 2013 As of May 2013 that is the only I-9 form which may be used for new hires If expired I-9 form used Staple completed expired form to current form Signs - state wrong form filled out correctly in a good faith

54 Review and update policies and procedures related to I-9 records Ensure HR staff are properly trained on current policy and law

55 Purge old I-9 forms pursuant to record retention schedules and rules Typically, I-9 records, like other employment records, should be kept either 1 year after the date of termination or 3 years after the employee s date of hire, whichever is longer Best practice: Keep employment records at least five (5) years after termination Some employment records (e.g., OSHA) may have to be kept longer

56 Guidance and information from the United States Citizenship and Immigration Services website, National Association of College and University Attorneys I-9 audit checklist, 9_auditchecklist_rford.pdf ICE Fact Sheet: Form I-9 Inspection Overview, inspection.htm Richard D. Alaniz, The I-9 form, all about the details, The Fabricator (June 28, 2013)(a publication of the Fabricators and Manufacturers Assoc., Int l., ent/the-i-9-form-all-about-the-details)

57

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