I-9s So Simple, Yet So Risky!

Transcription

1 Presentation to I-9s So Simple, Yet So Risky! by

2 Agenda Basic Terminology and Acronyms Purpose of the I-9 Form Recent Changes Recent changes to the I-9 Form and Employer Handbook What to expect if there is an I-9 audit Overview of E-Verify Other enforcement issues 2

3 Basic Terminology and Acronyms I-9 : I-9 Form DHS: Department of Homeland Security USCIS : United States Citizenship and Immigration Services ICE: Immigration Customs Enforcement OSC: Office of Special Counsel DOL: Department of Labor OFCCP: Office of Federal Contract Compliance Programs EEOC: Equal Employment Opportunity Commission MOU-Memorandum of Understanding 3

4 Purpose of I-9 Form All U.S. employers required to complete a Form I-9 to verify employment eligibility of each new hire Identity Employment Authorization Refrain from discriminating based on immigration status 4

5 Purpose of I-9 Form Do I need to complete an I-9 Form for all my employees? Applies to new employees hired after November 6, 1986 Form is for employees to complete - not applicants, or independent contractors Do I need to hold on to the I-9 Form for a specific amount of time? There is a specific retention period designated for terminated employees Must ALWAYS have an I-9 Form on file for all current employees 5

6 Purpose of I-9 Form Does the I-9 Form have instructions? Yes. Instructions can be found with the form, and in the Handbook for Employers. Is the form available in Spanish? Yes. The Spanish version may be used as a translation guide for Spanish-speaking employees. Please note that the English version must be completed and retained. Where can I find the I-9 Form? 6

7 Headlines Employer audits skyrocket in ICE's hunt for those hiring illegal immigrants U.S. Immigration and Customs Enforcement reached its highest number yet of companies audited for illegal immigrants on their payrolls this past fiscal year. Audits of employer I-9 forms increased from 250 in fiscal year 2007 to more than 3,100 in 201. From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million. The number of company managers arrested continue to increase. Source: Associated Press 7

8 Headlines Staggering 2012 statistics for ICE workplace audits and fines By the end of 2012, Immigration and Customs Enforcement s (ICE) efforts in I-9 audits broke previous records: it inspected more than 3,000 businesses for I-9 employment eligibility verification compliance and issued nearly $13 million in fines. To put these numbers into perspective, ICE conducted only 250 workplace compliance audits in 2007; 503 in 2008; 1,444 in 2009; 2,000 in 2010; and 2,496 in ICE has offices in all 50 states and employs more than 20,000 people cases, 3127 investigations 8

9 Headlines Huge Jump in I-9 Audits The number of I-9 audits multiplied over the past decade, rising from almost none just three in 2004 to 500 in 2008 and 3,004 in Employers should pay attention accordingly, as the fines for substantive and procedural violations of the Immigration Reform and Control Act (IRCA) can add up quickly, Daniel Brown, an attorney with Fragomen in Washington, D.C., said on March 12, 2013, at the Society for Human Resource Management s 2013 Employment Law & Legislative Conference. 9

10 Headlines Local 4 Houston residents charged with employing illegal aliens A 13-count indictment involving a conspiracy to employ illegal aliens, and encouraging and inducing illegal aliens to work in the United States. Two were management employees of a waste disposal company, two were employed by a staffing company working as onsite managers at the waste disposal company s location. Illegal aliens encouraged to obtain false documentation and false identities Company terminated and then illegal employees rehired under assumed identities Criminal charges facing up to 10 years in prison and up to $250k in fines. 10

11 Recent Changes To The I-9 On March 8, 2013, USCIS published revisions to Employment Eligibility Verification Form I-9 and the form s instructions. The revisions include: Expanding the form to two pages. A redesign that ensures the form is in line with current design standards. Changes in font and font size, and placing the instructions in a one-column format. Expanded instructions that now more clearly describe: Information employees must enter in Section 1; Employers responsibilities for Section 2; Employer responsibilities, including when reverification is necessary, for Section 3. Beginning May 7, 2013 all employers are required to use the most recent version of the Form I-9. 11

12 Recent Changes To The I-9 New format w/broken up blocks Changes to Last and First Name Fields Maiden name has become Other Names State drop-down list and SSN boxes address and telephone number (voluntary) 12

13 Recent Changes To The I-9 A Number vs. USCIS Number Foreign Passport Information More defined signature box 3-D Barcode? 13

14 Recent Changes To The I-9 Notable Points to Section 1 Preparer/Translator When to complete? New Stop Sign Notable Points to Section 2 Employer Review Instructions to prevent over-documentation List A third document fields added 14

15 Recent Changes To The I-9 Notable Points to Section 3 Re-verification & Re-hires Mostly formatting changes Still no place for doc issuing authority New Print Name field 15

16 Breaking Down The I-9 Form Review instructions with the I-9 Form Review I-9 Form Review of Listing of Acceptable Documents Addressing Corrections 16

17 Breaking Down The I-9 Form Instructions Anti-Discrimination Notice: Employers CANNOT specify which document(s) they will accept from an employee Recruiter speech: Please bring a copy of your SSC and DL with you on your first day. What is wrong with this? Instructions Sections What Is The Purpose Of This Form? When Should Form I-9 Be Used? Filling Out Form I-9 What Is the Filing Fee? USCIS Forms and Information 17

18 Breaking Down The I-9 Form Instructions Sections (Continued) Photocopying and Retaining Form I-9 A blank Form I-9 may be reproduced, provided both sides are copied. Can be signed and retained electronically Privacy Act Notice Note: Do Not Mail Completed Form I-9 To ICE or USCIS 18

19 Breaking Down The I-9 Form Section I The completes. Section II The completes. Section III The completes. 19

20 Breaking Down The I-9 Form List of Acceptable Documents List A List B List C Illustrations appear in Handbook 20

21 Breaking Down The I-9 Form Time Frame Ensure the employee completes Section I of the I-9 Form by his or her first day of work for pay. Employees may complete Section I of Form I-9 at any time between acceptance of job offer and the first day of work for pay. Employer should review the employees document(s) and fully complete Section 2 of Form I-9 within 3 business days of the first day of work for pay. Ex. If the employee begins work on Monday, the employer must complete Section 2 by Thursday. 21

22 Breaking Down The I-9 Form Must be available for inspection by authorized U.S. Government DHS, DOL, OFCCP, OSC, ICE Keep I-9s separate from personnel files Retain I-9 Form for terminated employees per regulations (more later) 22

23 I Bet You Already Have Questions About. Photocopies of documents do I have to? No. But What do you recommend about photocopies of documents? Advantage vs Disadvantage vs Compliance I have heard SSN is required to complete on the I-9 Form. Is this a required field? Hmmmm.depends 23

24 Common Errors Section I Employee leaves section blank Format incorrect Does not sign or date Dates with DOB Selects no or more than 1 box Date signed beyond timeframe P.O. Box provided 24

25 Common Errors Section II Not verifying genuine documentation Pre-fill of attestation information Reverification of documents not needing reverification Not completing Section III 25

26 Other Errors Incomplete or improper completion of translator section Incomplete or improper completion of Section III Not reverifying documentation when needed Requesting specific documentation Requesting more documents than necessary Improperly treating group of applicants differently to produce particular documents that the employer does not require other employees to produce Refusal to accept a document because it has a future expiration date 26

27 List of Acceptable Documents 27

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33 You only thought you were done If an employee writes down an alien number, admission number, USCIS number when completion section 1, can you ask to see the document with that number? Is a social security card with the annotation Valid For Work Only with DHS Authorization valid for employment? When does a school ID expire? Is a laminated social security card valid? 33

34 Recent Changes To The Handbook Purpose of Handbook: Help employers understand the Form I-9 process Purpose of Handbook Revision to address the following: Information about the revised I-9 form Examples of proper I-9 completion using the new form Revised Handbook for Employers (M-274) as of 3/8/2013 Last update occurred in 2011 Visual aids for completing the Form I-9 More pictures of acceptable documents 34

35 Tips Read the I-9 Form Instructions, Form, and List of Acceptable Documents Review the Employer Handbook Prepare for the process: pens, I-9 Forms, Instructions, Handbook One-on-one attention All at the same time Rid yourself of distractions Second set of eyes to audit 35

36 Tips (cont d) Is the information legible? Errors Only information relevant to the form should be written on the form Review section by section Carefully examine documents (yes, you can be penalized if you should have known better) 36

37 POP QUIZ!!! Do applicants and current employees complete an I-9 Form? Are photocopies of documents required? Can Section I be completed by the employer? Can I accept an expired document? A SSN is required for the I-9 Form. True or False? What should I do if the employee cannot supply document(s) within 3 business days? 37

38 Exercise 38

39 Exercise 39

40 Exercise 40

41 Exercise 41

42 Correcting the I-9 Form Only employers are allowed to correct errors made in Section 2 or Section 3 If an employer finds an error in Section 1, the employee should be asked to correct the section by: Drawing a line through the incorrect information Entering the correct information Initialing and dating the correction 42

43 Correcting the I-9 Form Employer made changes If correction fluid has been used, USCIS recommends attaching a signed and dated note to the corrected form explaining what happened Multiple employer changes Redo the section on a new form and attach to the old one Include a note/memo for the file regarding reason for changes to I-9s, i.e. an audit 43

44 Retention Once the employee no longer works for the company, the employer must determine how much longer to keep the Employee s Form I-9 Example 1. Date employee began work for pay A. Add 3 years to the date on Line Date employment was terminated B. Add 1 year to date on Line Which date is later; A or B? 44

45 Retention Eddie Employee was hired 1/1/2009 and was terminated on 1/31/ Date employee began work for pay 1/1/2009 A. Add 3 years to the date on Line 1. 1/1/ Date employment was terminated 1/31/2009 B. Add 1 year to date on Line 2. 1/31/ Which date is later; A or B? 1/1/

46 Retention Eddie Employee was hired 1/1/2009 and was terminated on 1/31/ Date employee began work for pay 1/1/2009 A. Add 3 years to the date on Line 1. 1/1/ Date employment was terminated 1/31/2012 B. Add 1 year to date on Line 2. 1/31/ Which date is later; A or B? 1/1/

47 Retention Exercise Lucy Lifeguard was hired on May 15, 2010 and was terminated on September 5, 2010 On what date can her I-9 be destroyed Paul Eventman was hired on December 1, 2010 and left the Company on January 3, On what date can his I-9 be destroyed? 47

48 Beware! Fraudulent documents Know the rules of social security numbers First three numbers no longer determined by zip code As of 2011, could have a SSN starting with 8 in the #1 position SSNs cannot start with number 9 Cannot have a SSN with first three numbers of 666 Cannot have a SSN with first three numbers of 000 Cannot have a SSN with number 00 in positions 4-5 Cannot have a SSN with 0000 in positions

49 Beware! (cont d) Fraudulent documents Carefully examine the cards presented reasonably appear on their face to be genuine and to relate to the person presenting them It isn t always about undocumented Beware of the issuing authority/agency Rejecting documents Have to provide the employee the opportunity to present another option, until they exhaust options! 49

50 ICE 50

51 ICE Mission: To promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Immigration Customs Enforcement (ICE) Principal investigative arm of the U.S. Department of Homeland Security 2 nd largest investigative agency in the federal government More than 20,000 employees in offices in all 50 states and 47 foreign countries Annual budget of more than $5.7 billion dollars 51

52 What is ICE s Enforcement Strategy? Enforcement efforts focused on employers better target the root causes of illegal immigration. An effective strategy must do all of the following: 1. Penalize employers who knowingly hire illegal workers; 2. Deter employers who are tempted to hire illegal workers; and 3. Encourage all employers to take advantage of the well-crafted compliance tools. To accomplish these goals, ICE must prioritize the criminal prosecution of the actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal workforce. * ICE Memo on Worksite Enforcement Strategy, April 30,

53 What tools will ICE use to accomplish its goals? ICE offices should use administrative tools to advance criminal cases and, in the absence of criminal charges, to support the imposition of civil fines or other available penalties. The most important tool is the Administrative Form I-9 audit The auditors will assume primary responsibility for conducting Form I-9 audits, ICE special agents and auditors must coordinate closely because this process will often serve as an important step in the criminal investigation and prosecution of employers. * ICE Memo on Worksite Enforcement Strategy, April 30,

54 Administrative Form I-9 Process 54

55 What Can You Expect? Letter of explanation of the Audit & Subpoena A Subpoena of documents and items Notice of Inspection letter Questionnaire 55

56 Take a Guess How much time does an employer have to gather requested information for an I-9 audit? 24 hours 3 days 1 week Please give me more time 56

57 Take a Guess Can an employer make changes to I-9s before turning them over to ICE? Yes No Maybe I choose D. I always choose D. 57

58 What Should I Expect Next? A letter giving you NOTICE OF SUSPECT DOCUMENTS Employees that may be working without authorization A letter giving you NOTICE OF DISCREPANCIES Employees that ICE was not able to verify employment eligibility or who may be working without authorization, or have authorization but there is an error in verification of documents 58

59 What are they looking for in the I-9 Audit? Technical Violations Correctable Given approximately 10 days to correct violations If fail to correct, subject to fines for each violation Substantive Violations Not correctable subject to a fine for each violation 59

60 Examples of Violations: Technical Violations: Missing DOB Failure to date Section I Failure of the employer to date Section II Failure of employee to include his or her A number if the Permanent Resident box is checked Substantive Violations: Failure of the employee to provide his or her printed name in Section I Failure of the employee to sign Section I Failure of the employer to sign Section II Failure to select citizenship 60

61 What Can We Do To Prevent Fines/Penalties? Create a corporate culture of compliance Create a comprehensive internal I-9 Compliance Program: Training Electronic I-9 software Internal audits Attorney audits Independent 3 rd party audits Enforce compliance rules Investigate reports of alleged unauthorized employment Take appropriate action 61

62 What s the difference FORM I-9 Is Mandatory Does not require SSN Does not require photo identity on List B Must be used to reverify expired employment authorization E-VERIFY Is Voluntary for most businesses Requires a SSN Requires a photo on identity documents MAY NOT be used to reverify expired employment authorization 62

63 Going Forward No change in Congress will have a significant effect not until we have some sort of immigration reform Attorney in HR Magazine, January Expect higher rates of audits to continue Law is clear: Employers have an affirmative obligation to verify that their employees are eligible to work in the United States. 63

64 Things To Consider Look at your process: Asking for more than what is required can be damaging Retention of I-9s Corrections: good faith right??? 64

65 Questions 65

66 Contact Information Cyndi Mergele, SPHR, PI Padgett, Stratemann & Co., L.L.P. AUSTIN 811 Barton Springs, Suite 550 Austin, Texas SAN ANTONIO 100 NE Loop 410, Suite 1100 San Antonio, Texas