I-9 Compliance Fines E-Verify

Transcription

1 I-9 Compliance Fines E-Verify How To How Much Steer Clear SPEAKER CHRISTINA LANG WALLACE PARTNER IMMIGRATION LAW & STRATEGY SAN FRANCISCO CA WASHINGTON DC

2 Meet Our Speaker Christina Lang Wallace Partner, RWG Focused on Business Immigration Law & Strategy with 15 yrs experience: Creating visa solutions for foreign owners and employees of US entities Handling legal complexities for small businesses and entrepreneurs Integrating business-and-family in our approach to immigration problems Evaluating I-9s and Workplace Compliance Predicting the government s next move

3 THIS SEMINAR WILL ACCOMPLISH Teaching and Pointers I-9s, E-Verify, Fines, Raids \ Giving I-9s their maximum due in your office Helping you avoid getting caught with heavy fines

4 GOALS TODAY 1. How to complete the Form I-9 2. Technical vs Substantive errors 3. Penalties resulting from an Audit 4. Likeliness of a fine and How Calculated 5. Whether you must use E-Verify 6. Which federal contractors and subcontractors must use E-Verify

5 The Scope of I-9 Discussion How to complete an I-9 How to Verify a new Employee How to Examine Documents Retention and Maintenance Internal Audits Penalties for noncompliance

6 Overall Completion of the Form I-9 Form I-9 for Employment Eligibility Verification Legally required to be used In the office of every employer on US soil Who hires or currently employs A US or foreign worker It is to VERIFY US Employment Eligibility

7 For Whom Must the I-9 Be Completed All US employees Full or part-time Hired since November 7, 1986 NOT NEEDED FOR Independent Contractors (Generally Note that FAR government contracts affect this) Contract agency employees (Care with this, later noted)

8 IRCA 1986 Brought the I-9 Makes employers responsible for two determinations for all employees hired since November 6, 1986: 1. Identity 2. Eligibility to work

9 Other Responsibilities Inherent in I-9ing No Discrimination Retention Self-Audits

10 Find the I-9 at Go to Top left FORMS Scroll down to Form I-9 Open the Form and Instructions For use each time you verify: Print the booklet to reference documents called M-274 Handbook for Employers

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12 Form I-9: SECTION 1 [insert graphic of SECTION 1] sent by

13 Phase 1 and Section 1 Section 1: complete it by or on the 1 st day of employment Employee must complete and sign Section 1 of the form I-9 Employer should ensure that Section 1 is completed correctly Check the right box Check all blanks

14 FORM I-9: SECTION 2 [insert graphic of section 2]

15 SECTION 2 When and How to Complete? WITHIN 3 BUSINESS DAYS of START DATE Employee: brings acceptable documents from Docs List Employer: inspects original documents Employer Certifies with full employer info Don t forget to note the employment start date Sign it and put your title so you can be held liable Enters Document Information

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17 LOOKING AT SECTION 2, AGAIN NOW [same graphic again: Section 2

18 SECTION 2 Document Information Enter document information in correct columns Enter enough information and details Document title Issuing authority Document number Expiration date

19 SECTION 3: REVERIFICATION [insert Section 3 graphic]

20 SECTION 3: PURPOSE of REVERIFICATION To Reverify employment eligibility Used for employees in situations where Authorization expires Like a foreign work permit Also green cards on which exp was irrelevant under old laws OR When the employee is rehired within 3 years of initial hire

21 USE of SECTION 3: OPTIONAL, sort of Use Section 3 OR Use a New Form I-9 YOUR Choice! We Recommend Section 3 for Expiring Document employees New I-9 for Returning Rehires

22 TAKE THAT I-9 and DO THIS WITH IT: Send the original to HR At the location of employment OR To headquarters.your choice DO NOT keep a copy for your own files Do not keep shadow files You may use electronic uploaded I-9s Do not keep a copy in their personnel records QuickTime and a decompressor are needed to see this picture.

23 RETENTION OF THE FORM I-9 Hire: 9/24/01 Fire: 11/24/03 Retain until? 9/24/04 or 11/24/04??

24 PREPARE FOR A GOVERNMENT AUDIT Your I-9 System as it currently exists FIX IT! HOW? QuickTime and a decompressor are needed to see this picture.

25 SELF AUDIT: 5 Easy STEPS (One Method) 1. Make sure everyone on payroll has an I-9 Make sure all I-9s are in one place 2. Put ex-employees in a separate section in the back In order of date of termination 3. Purge old I-9s 4. Go through I-9s and look for errors Fix them --- Date them ---- Never use white-out 5. If you see a major error (like never did I-9s before), explain them in a cover memo

26 E-VERIFY Electronic Verification It s here. But keep in mind. Is it the government s overfunded solution to illegals? (we already have I-9s) or a business-killer?

27 E-VERIFY IN SUM Online Verification Gives no immunity from government action But can mitigate fines Hangs up US workers who are not verifiable Can raise your company s red flag before the US govt

28 Some Thoughts... E-VERIFY Give your Opinion to your Congressperson! (Support targeted enforcement. Vote for new business-visa classifications to get legal workers! But not E-Verify. It hurts Americans.)

29 FAR Clause in Federal Contract Work Contracts with a Federal Acquisition Regulation Clause What it does: Requires E-Verify for all or part of Workforce Use By Whom: For Federal Contractors For their flow-down subcontractors

30 RAIDS and PUNISHMENTS When ICE Comes Knocking - You ll get a Subpoena requesting I- 9s and related documents - Ask for time - Turn those documents in (Have them ready now: Self-Audit) - Deal with Your Notice of Intent for Fine be ready to bargain

31 FINES FOR WHAT? For knowingly hiring illegal workers For continuing to employ illegal workers For first time and repeat offender employers For substantive violations For uncorrected technical violations

32 OTHER PUNISHMENTS? Criminal Prosecution Repeat offenses Aggredious offenses Debarment of part of whole unit For knowing hire For government contractors

33 AMOUNT of FINES $375 to $16,000 Per Violation For knowing hiring illegal workers For continuing to employ illegal workers $110 to $1100 Per Violation For substantive violations For uncorrected technical violations Upped by a Percentage Scale for Ratio of Offenses Vertically on Calculation Table Upped by a Percentage Scale for Repeat Offenders Laterally on Calculation Table

34 PENALTIES: GOAL IS TO MITIGATE ICE Determines Penalties Based on 5 FACTORS: 1) The size of the business 2) The good faith effort to comply 3) The seriousness of the violation 4) Whether the violation involved unauthorized workers 5) And a history of previous violations QuickTime and a decompressor are needed to see this picture.

35 EXAMPLE OF FINE TABLE for Substantive and Uncorrected Technical Violations Substantive Verification Violations 1st Offense $110 - $1100 Standard Fine Amount 2nd Offense $110 - $1100 [insert graphic of fine table substantive/technical] 3rd Offense + $110 - $ % $110 $550 $1, % $275 $650 $1, % $440 $750 $1, % $605 $850 $1, % $770 $950 $1,100 50% or more $935 $1,100 $1,110

36 SUBSTANTIVE VIOLATIONS Substantive Violations Per se Treated as such: Uncorrected Technical Violations Calculate Base Fine Amount: Get Calculation Percentage by 1. Counting up violations 2. Dividing it by number of employees for whom I-9 should have been prepared includes ex-employees Up the Base Fine by First Second or Third Offender Columns

37 PURGE YOUR I-9s Purge to lower fines Self-Audit to lower fines Mitigate to lower fines

38 STATISTICS 1/4 th of ICE Arrests were Criminal Arrests in Worksite Enforcement Investigations 1/8 th of that were owners, managers, supervisors, HR employees for harboring or knowingly hiring illegals 7/8ths are employees facing charges, including aggravated identity theft and Social Security Fraud 5 times more administrative arrests, than criminal, for immigration violations

39 Valuable Resources Helpful LINKS On RWG I-9 Section bottom of web-page Same Links will be listed on the Webinar s Landing Page EXCELLENT Q & A From 2009 NFIB Webinar by Ogletree & Deakins Print it!

40 Valuable Resources: RWG RWG s Compliance Services Organizing I-9s in-house Learning how to complete an I-9 Determining if E-Verify is for a company, with consideration for FAR (federal contract clause) Dealing with SSA No-Match letters Getting a Notice of Inspection (NOI) from the government for an I-9 Audit Doing an Internal I-9 Self-Audit to assess potential fines in system as is, clean up I-9 files

41 You may contact Christy Wallace directly at the: Washington Metro Office Ryvin Wallace Group 5600 General Washington Drive Suite B-211 Alexandria, VA T: (703) F:(703)

42 Additional NFIB.com Resources New Form I-9 in Effect Rule of Law: Ensuring Eligibility

43 Stay Connected with NFIB For more information about the Small Business Webinar Series visit: We want your feedback. Please fill out the short survey that you will receive via after this webinar. To learn about NFIB visit: NFIB is on: