Top 12 Strategies For I-9 and E-Verify Title Requirements Goes Here in 2012

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1 Top 12 Strategies For I-9 and E-Verify Title Requirements Goes Here in 2012 Presented By: Sarah J. Hawk, Shareholder Brittni A. Pitts, Associate

2 Top 12 Strategies 1) Know the relevant immigration and employment laws 2) Tighten the company s I-9 policies and practices 3) Recognize Technical vs. Substantive Mistakes in the I-9 process 4) Consider the pros and cons of using electronic I-9 systems 5) Perform an I-9 self-audit 6) Remain up-to-date and compliant with state E-Verify laws 7) Understand the E-Verify process 8) Invest in I-9 and E-Verify training 9) Avoid discriminatory practices in the I-9 and E-Verify process 10) Watch out for risks that may subject the company to an audit 11) Be aware of potential fines for non-compliance 12) Know the resources for I-9 and E-Verify Compliance

3 (1) Know the Relevant Immigration and Employment Laws Title VII of the Civil Rights Act of 1964 (Title VII) Immigration and Nationality Act of 1952 (INA) Immigration Reform and Control Act of 1986 (IRCA) Purpose of IRCA Control illegal immigration Preserve U.S. jobs for U.S. citizens and lawful immigrants Prohibit the hiring and continued employment of undocumented workers who are not authorized to work in the U.S.

4 (2) Tighten the Company s I-9 Policies and Practices Have a written company policy -Copies or No Copies of supporting documents - Store securely (not w/ personnel files) Designate I-9 point of contact for company Be familiar with the 3 sections of the I-9 form Know when to Re-verify (or Not) Calculate I-9 retention dates

5 Front Back! Must use thenewi-9 Form. The form was revised on 8/7/09. This version expires on 8/31/12.

6 Completing Form I-9 SECTION 1 Completed by the EMPLOYEE by close of business on the employee s 1stday of work for pay! Cannot use Form I-9 as a Pre-Hiring Screen.

7 Completing Form I-9 SECTION 1 Completed by the EMPLOYEE by close of business on the employee s 1st day of work for pay Common Section 1 Errors 1. Attest box not checked 2. Missing/Incorrect Alien # Missing/Incorrect signature date 3.

8 Completing Form I-9 SECTION 2 Proof of Identify and Work Authorization Must be completed by employer within 3business daysof the date employment begins Employer must examine documents that verify employee s identity and authorization to work in the U.S. Must certify that the documents: reasonably appear to be genuine; relate to the individual; authorize the individual to work; and don t appear to be tampered with or doctored Beware of Obvious Fraud!

9 Section 2 Lists of Acceptable Documents ERs may not require or prefer that employees present a certain document from the list.

10 Completing Form I-9 SECTION 2 Common Documents FRAUD! Does not show employment authorization!

11 Completing Form I-9 SECTION 2 Common Section 2 Errors 1. Document Title/Issuing Authority is listed incorrectly or not listed at all 2. Using an expired document 3. Using a Receipt (i.e. for lost/stolen/damaged doc) without indicating it as such or making an internal note to see the replacement document within 90 days of hire 4. ER information is incorrect and not signed & dated within 3 business days 5. Missing or incorrect date of hire

12 Completing Form I-9 SECTION 3 Re-Verification When should the documents be Re-verified? All employers should set into place a tickler system 120-day notice (recommended) Only for work authorization documents When work authorization expires When employer receives actual or constructive knowledge When receipt expires Not necessary for identity documents Not necessary for I-551 cards Re-verification must take place by date of expiration

13 Form I-9 Retention Requirements An employer must keep I-9s for all current employees Form I-9s of formeremployees must be kept for 3years from the date of hire or 1 year after termination of employment, whichever is later

14 (3) Recognize Technical vs. Substantive Mistakes Substantive (higher fines): Lack of Employee Signature Lack of Attestation of Employee as to citizenship status Multiple statuses Status as LPR or Alien Authorized to Work but lacking Alien #, Exp. Date Lack of Employer Signature Listing improper documents to establish identity, empl. eligibility Failure to complete Form * Attaching supporting documents can show technical violation.

15 (4) Pros & Cons of Using Electronic I-9s Replace paper I-9 forms by creating and storing I-9s electronically Full integration with E-Verify (optional) For new hires and current employees Reminds you of expiring documents Automatic Purge Date Calculation Checks Errors!

16 (5) Perform an I-9 Self Audit DOs Do have a consistent policy. Have a written I-9 policy for HR. (To keep copies or not) Do allow choice of documents. The employee can choose which document he or she wants to present from the lists of acceptable documents. Do reverify expiring work authorization, using the new I-9 form. Do review payroll records to confirm any missing I-9 forms ($1000 substantive violation) Do calculate retention dates for terminated employees (3 years from start date and 1 year from term date) DON Ts Do not accept any expired documents for the I-9 form. Do not reverify US passport or LPR green card or Driver s Licenses Don t use white out, don t backdate. Make correction and initial and date and write per selfaudit. Don t require too much documentation List A OR List B/List C. (not all 3) Don t do all new I-9 forms for current employees for a self-audit make corrections on the existing I-9 form. Don t ignore any red flags.

17 Making Corrections to Form I-9 Correct errors on each form. Section 1 EEmakes corrections. Section 2 ERmakes corrections. Strike through errors do notuse white-out. All corrections should be initialed, dated, and include the words Per Self Audit! Do Not BACK-DATE!

18 (6) Remain Up-to-Date on State E-Verify Laws HB 87 - The Illegal Immigration Reform and Enforcement Act (IIREA) Requirements for Georgia Employers Requirement to use E-Verify(electronic verification of newlyhired employees) Effective Dates July 1, 2011: All public (government) employers, government contractors and subcontractors January 1, 2012: Private employers with 500 or more employees July 1, 2012: Private employers with 100 or more employees July 1, 2013: Private employers with 11 or more employees Exempt: Private employers with 10 or fewer employees Know who is counted as an employee?

19 (7) Understand the E-Verify Process E-Verify is a free Internet-based system that employers use to confirm the legal status of newly hired employees Voluntary system Operated by the federal government to verify social security numbers Benefit: Presumed to be in compliance Drawback: DHS has an open door to your files and employees without a warrant

20 How Does E-Verify Work? E-Verify compares information from an employee s Form I-9 to U.S Department of Homeland Security and Social Security Administration databases to confirm employment eligibility. Search results in 5-30 seconds: Employment Authorized (EA) SSA Tentative Non-confirmation If an employee receives a TNC result, the employer must give that employee an opportunity to resolve the mismatch. (Errors do occur, and e-verify allows the employee who believe that they should be legally allowed to work in the U.S. to challenge system mismatches.) Photo Matching Allows the employer to confirm the photo on an employee s document with the photo in DHS records.

21 (9) Avoid Discriminatory Practices Protected Categories: IRCA prohibits: National Origin Citizenship (or immigration status) Retaliation Does TITLE VII also prohibit? YES NO YES Enforcement Agency: IRCA Office of Special Counsel (OSC) of the Dept. of Justice (DOJ) TITLE VII EEOC, state/local administ. agencies Coverage: IRCA Applies To: Employers with 4 or more employees TITLE VII Applies To: Employers with 15 or more employees

22 Avoid Discriminatory Practices Don t go too far. Do allow choice of documents. The employee can choose documents. Accept documents if they appear authentic. The antidiscrimination provision of the INA prohibits unfair documentary practice when employers treat individuals differently based on basis of national origin or citizenship status. Examples of Document Abuse: - Asking employees to produce more documents than are required by Form I-9. - Asking for a specific type of document such as a green card or LPR card to prove identity/employment authorization. - Improperly rejecting documents that reasonably appear to be genuine and relate to the individual presenting them. - Improperly treating groups of individuals differently when completing the I-9 form, e.g., who look or sound foreign to produce specific documents that other employees are not required to produce.

23 (10) Watch out for risks that may subject the company to an audit Tips from disgruntled former workers Other investigations SSN no match letters ignored Past I-9 Audits ICE is revisiting employers that have been subject of I-9 inspections in last 3 years. 500 employers are being revisited by Special Agents New Employment Compliance Inspection Center in 2011 for audits of large employers.

24 (11) Be aware of potential fines for non-compliance Under the new penalty schedule, fines range from $375 to $14,050 if the employer is charged with knowingly hiring undocumented workers. Knowing Hire and Continuing to Employ Violations First Tier $375 - $3,200 Second Tier $3,200 - $6,500 Third 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

25 Substantive Verification Violations 1 st Offense $110 - $1,100 2 nd Offense $110 - $1,100 3 rd Offense $110 - $1,100 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

26 Form I-9 Inspection Process

27 Case Analysis UNITED STATES OF AMERICA, COMPLAINANT v. SNACK ATTACK DELI, INC. D/B/A, SUBWAY RESTAURANT # 3718, RESPONDENT 10 OCAHO 1137 December 22, 2010 FACTS: Jan Notice of Inspection (I-9 audit), for period 2006 Feb July 2009 Notice of Intent to Fine issued to ER Found 108violations of IRCA for unlawful employment of unauthorized workers; All violations were considered Serious Some I-9s were not completed until after the notice of inspection was issued Errors in Sections 1, 2, and 3 ER back-dated some of the forms in an attempt to fix its previous mistakes/omissions Some I-9s not completed at all!! None of the EEs were actually unauthorized workers. HELD: Penalty -$27,250

28 (12) Know the Resources for I-9 and E- Verify Compliance M-274 Handbook for Employers (June 1, 2011) I-9 central Immigration Alerts and Labor/Employment Alerts I-9 Self-Audits Electronic I-9 System set up I-9 and E-Verify Training

29 Best Practices Implement a company-wide comprehensive written I-9 policy and compliance program Designate one person who will have ultimate authority over the I-9 compliance program Provide training regarding I-9 procedures Consistently conduct self audits and make corrections - Do not back-date!

30 Questions Sarah J. Hawk, Shareholder Tel (404) / Brittni A. Pitts, Associate Tel (404) / Ogletree Deakins Law Firm 191 Peachtree Street NE, Suite 4800 Atlanta, GA 30303

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