What Shipbuilders and Their Vendors Should Do to Prepare For an ICE I-9 Audit to Avoid Penalties

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1 What Shipbuilders and Their Vendors Should Do to Prepare For an ICE I-9 Audit to Avoid Penalties

2 Some Introductory Facts

3 Form I-9 is an employment verification tool brought about by Immigration Reform and Control Act. Form I-9 helps verify whether individuals are authorized to work in the United States. Employers who knowingly violate or circumvent the Form I-9 process, or antidiscrimination requirements of the INA may be subject to civil and/or criminal penalties.

4 Citizens of the United States Noncitizen nationals of the United States Lawful Permanent Residents Aliens authorized to work

5 The most recent version of Form I-9 was released on March 8, 2013 and became mandatory on May 7, After May 7, 2013 NO OTHER VERSION of the Form I-9 can be used. NOTE Destroy all copies of any other versions of the Form I-9 and use only the version.

6 ICE employs all available civil and administrative tools, including audits. Audits result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law. ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law. ICE Assistant Secretary John Morton November 19, 2009 News Release

7 ABERCROMBIE & FITCH FINED $1 MILLION After an I-9 audit in November, 2008, Abercrombie & Fitch was fined $1,047,110 for technical deficiencies in its I-9s.

8 During the investigation Abercrombie & Fitch was fully cooperative. There were no instances of knowingly hiring unauthorized aliens that were discovered. Audit was for Michigan stores only. In announcing the fine ICE stated: 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.

9 WHAT CAN YOU DO TO AVOID THIS? In FY 2010 ICE arrested196 business owners, managers, supervisors or human resource employees for criminal violations related to I-9 compliance.

10 Annual audit of I-9s (preferably by third party or someone internally who has been trained to perform I-9 audits and is not part of the normal I-9 process) HR training in the proper completion and maintenance of I-9s Written I-9 compliance policies and procedures which are followed and enforced I-9 storage and purging policies

11

12 ICE targets 18 critical infrastructure sectors : agriculture and food; banking and finance; chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; government facilities; health care and public health; information technology; national monuments and icons; nuclear reactors, materials and waste; postal and shipping; transportation systems and water.

13 Basic Rules and Resources

14 Treat every job applicant as if

15 He or she is a wired ICE Agent or Informant

16 READ the Handbook For Employers M-274 THEN read it again!

17 On March 8, 2013 the United States Citizenship and Immigration Services released an updated M- 274 at the same time that it released its new Form I-9. The M-274 will now be titled Handbook for Employers, Guidance for Completing Form I-9 (Employment Eligibility Verification Form). You should ALWAYS have the most current version of the M-274 at your desk.

18 Complete, maintain and destroy your Form I-9s and have an I-9 Compliance Policy in place assuming that your company will be subject to a Notice of Inspection by Immigration and Customs Enforcement in the near future.

19 Should you company use E-Verify? Are you in an E-Verify State?

20 WHAT IS E-VERIFY? A free internet based system that employers use to confirm the legal status of newly hired employees.

21 Employers submit information provided on an employee s Form I-9 in to the E-Verify website. The E-Verify system will return one of these results: Employment Authorized The employee is employment authorized SSA Tentative Non-Confirmation The SSA database is showing the employee s name and SSN are not matching. DHS Verification in Process The DHS will respond within 24 hours with either an Employment Authorization or DHS Tentative Non-Confirmation.

22 An E-Verify Employer Must: Comply with I-9 rules except that List B documents proving identity must have a photograph; also, if an employee presents an I-551 permanent residency card or an I-766 EAD, the employer must keep a copy of this document. NOT use E-Verify to selectively check only some employees as opposed to all new hires. NOT use E-Verify to re-verify employees with I-9s requiring re-verification or run existing employees through E-Verify.

23 What You Need To Know

24

25 NOI is an administrative subpoena served by and Immigration and Customs Enforcement ( ICE ) agent upon the business. It allows three days for production of the subpoenaed documents although under appropriate circumstances an additional time can be requested. Documents requested usually include payroll records, I-9s for current employees, Articles of Incorporation and business licenses.

26 Substantive Verifications Violations 1 st Offense $110 - $ nd Offense $110 - $ rd Offense $110 - $1100 0% - 9% $110 $550 $1,100 10% - 19% $275 $650 $1,100 20% - 29% $440 $750 $1,100 30% - 39% $605 $850 $1,100 40% - 49% $770 $950 $1,100 50% or more $935 $1,100 $1,100 The agent or auditor will divide the number of violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage. Penalties for Substantive and Uncorrected Technical Violations The standard fine amount is for each Form I-9 with violations!

27 Knowingly Hire /Continuing to Employ Violations 1 st Tier $375- $ nd Tier $3,200 - $6,500 3 rd Tier $4,300- $16,000 0% - 9% $375 $3,200 $4,300 10% - 19% $845 $3,750 $6,250 20% - 29% $1,315 $4,300 $8,200 30% - 39% $1,785 $4,850 $10,150 40% - 49% $2,255 $5,400 $12,100 50% or more $2,725 $5,950 $14,050 The agent or auditor will divide the number of violations by the number of employees for whom a Form I-9 should have been prepared to obtain a violation percentage. Penalties for Knowingly Hiring/Continuing to Employ Violations The standard fine amount is for each instance of knowingly hiring or continuing to hire!

28 Fine guidance allows ICE to assess a five percent increase or decrease for each of the following factors: Size of employer Good faith of employer Seriousness of violations Whether workers with improper I-9s were actually unauthorized workers Employer s enforcement history

29 Annual audit of I-9s HR training in the proper completion and maintenance of I-9s Written I-9 compliance policies and procedures which are followed and enforced I-9 storage and purging policies To Avoid Paying This You Must Do This.

30 What You Need To Know

31 Everyone who is responsible for completing a Form I-9 should have I-9 training that includes - How to properly complete Sections 1, 2 and 3 When to use the Preparer/Translator Section What documents are acceptable for I-9 verification How to record the acceptable documents How to establish a calendaring system for I-9s that need to be reverified How to properly correct errors on a Form I-9

32 Form I-9 training should also include Proper storage procedures for Form I-9s for both current and terminated employees Rule for when a terminated employee s I-9 can be destroyed E-Verify rules and pros and cons of using same Unlawful discrimination provisions of the INA as it relates to employment eligibility verification Recent cases which affect I-9 compliance and Notices of Inspection

33 Instructions have increased from 2 pages to 6 pages. It is required that you provide a copy to the new hire when you give them the Form I-9 to complete. They contain much more detailed instructions and the expectation is that failure to complete the Form I-9 in compliance with the Instructions will be a substantive violation if you are audited by ICE. READ THEM CAREFULLY!

34 CHECK YOUR I-9s CAREFULLY! Each paperwork/clerical error on each I-9 is subject to a fine. Therefore the two or three minutes of time it takes to recheck the I-9 is worth the effort. These fines add up quickly!

35 THIS IS THE TIP OF THE ICEBERG! There are many additional rules, practice tips, recent cases, common errors that we could review but time does not allow!

36

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