I-9 Compliance Procedures and Best Practices

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1 I-9 Compliance Procedures and Best Practices FEATURED FACULTY: David C. Whitlock, Miller & Martin PLLC (404)

2 David C. Whitlock, Miller & Martin PLLC Dave has over 25 years of experience in business immigration, compliance, employment counseling, and training. In addition, Dave has extensive experience handling employment-related visa work, including both temporary and permanent visa cases, as well as advice regarding compliance with the I-9, discrimination, and document abuse provisions of the Immigration Reform and Control Act of 1986 and litigation arising under that statute. He is a frequent lecturer and presenter on immigration and compliance topics and best practices in employment-related topics.

3 **Certificates of attendance and CEUs, when available, must be requested through the online evaluation.** Evaluation for Live Event: We d like to hear what you thought about the audio conference. Please take a moment to fill in the survey located here: Requests for continuing education credits and certificates of attendance must be submitted within 10 days of the live event. Evaluation for CD Recording: Please use the following link to submit your evaluation of the recorded event: Please note: All links are case sensitive Receive 1.25 recertification credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI)! For more information about certification or recertification, please visit the HRCI homepage at "The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute's criteria to be preapproved for recertification credit."

4 Better I-9 COMPLIANCE David C. Whitlock, Esq. Miller & Martin PLLC Immigration Practice Group Increasing Enforcement Bush Administration Raids, Raids, Raids... 1

5 Increasing Enforcement Obama Administration Audits, Audits, Audits... Increasing Enforcement George s Processing Settles for $450k Shipley Do-Nut Fined $250k and forfeits $1.33 Million Pilgrim s Pride Settles for $4.5 Million Koch Foods pays over $500k for Administrative Violations 2

6 Enforcement OMG November 2010 Abercrombie & Fitch settles I-9 paperwork complaint for $1,050,000. Based only upon stores in Michigan. Complaint based in part upon problems with electronic software system. Targeted Industries Agriculture Construction Food Processing Hospitality Textiles Others in national infrastructure 3

7 Comprehensive Immigration Reform For the first time since 2007, there is a realistic possibility for Comprehensive Immigration Reform Any reform statute will include dramatic increases in enforcement More audits Higher penalties E-Verify mandate nation-wide Comprehensive Immigration Reform Senate Passes CIR June 27. House Republican Leadership vows not to consider the Senate bill and instead implement an incremental approach. So far... Agricultural Guestworker Act (HR 1773) Legal Workforce Act (HR 1772) Strengthen and Fortify Enforcement (SAFE) Act (HR 2278) Border Security Results Act (HR 1417) Supplying Knowledge Based Immigrants and Lifting Levels of STEM Visas (SKILLS) Act (HR 2131) 4

8 Comprehensive Immigration Reform Options in the House Piecemeal legislation only the Bandaid method Create a House version of CIR Consider the Senate bill Do nothing and let CIR die for this session Speaker Boehner: Senate bill DOA Not enough muscle for House CIR bill Republicans facing the re-election quandary IRCA Basics: Prohibited Acts Knowingly hire an alien who is not authorized to work Hire any individual without verifying identity and work authorization Continue the employment of a person if the employer knows or should know the person is not authorized to work 5

9 IRCA Basics: Prohibited Acts Require an employee to present any specific document or combination of documents for I-9 purposes Require an employee to present more or different documents than are minimally required for the employment verification process Refuse to accept documents tendered by an employee that reasonably appear to be genuine on their face IRCA Basics: Penalties Fine per unauthorized alien for Illegal Employment Violations $375 to $3,200 First Violation $3,200 to $6,500 Second Violation $4,300 to $16,000 Third & Other Violations Criminal Sanctions Likely After First Violation 6

10 IRCA Basics: Penalties I-9 paperwork violations result in penalty of $110 to $1,100 for each individual ICE does not believe that this penalty range encourages compliance, so higher penalties are likely More Penalties 10 years and/or $250,000 fine for harboring, smuggling, concealing, or transporting illegal aliens for financial gain Employment is always viewed as financial gain Criminal sanctions for conspiracy to harbor, smuggle, conceal, or transport 7

11 Before An Audit Conduct periodic Self-Audits At least once per year Fix Errors on Forms Can t fix late forms Can t fix status for terminated Keep I-9 Forms Out of Personnel Files Sensitive Information Time to Retrieve Forms Set up files for terminated employees I-9 forms Purge forms when retention test is met If ICE Comes Knocking Insist on the 3 Day Notice period Make and keep copies of ALL documents you give to ICE/DOL Get name, telephone number, business card of lead agent Do not consent to ICE speaking to employees on premises -- ask them politely to stop Prepare memorandum setting out what happened If you allow inspection on site, keep agents away from employees and other business records 8

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14 Deadlines for I-9 Completion Section 1 must be completed by the employee at the time employment begins Section 2 must be completed by the employer by the end of the third business day Before employment begins if employment will be three days or less Section 3 must be completed by the expiration date of the foreign national s work authorization 11

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16 Section 1 Employee should complete Section 1 before work commences Section 1 asks name, address, date of birth, Social Security number, and status Employee must attest to accuracy of Section 1 information under penalty of perjury Employee must sign and date Use Preparer/Translator certification, if necessary Employer can complete Section 1 13

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19 Section 2 We recommend employer complete Section 2 immediately after employee completes Section 1 Employer completes Section 2 by examining the documents presented by the employee and recording the document numbers and expiration dates in the appropriate columns in Section 2 Employer must examine original document -- not a photocopy 16

20 Rehired Employees A new I-9 form need not be completed for persons re-hired within three years of completing a prior I-9 form Instead, the employer can update the prior I-9 form by confirming that the employment eligibility document originally presented remains valid If still valid, the employer merely records the re-hire date in Section 3, Item B of the form The form must be retained based upon the new hire date 17

21 Reverification If the employee's work authorization document expires, employer must reverify the employee s right to work prior to the expiration of the current work authorization document Only reverify on the basis of the document presented; ignore any expiration date in Section 1 Failure to make a timely reverification is almost always construed as knowingly continuing the employment of an alien who lacks authorization to work Reverification Reverification is accomplished by examining a new work authorization document and completing Section 3, Item C of the form The new document type, number, and expiration date (if any) should be recorded in Section 3 and the employer should sign and date Section 3 of the form Reverification is not necessary for identity documents, U.S. passports, or Permanent Resident cards 18

22 Reverification Maintain tickler file of employees with work authorization documents that expire Remind employees of the need to obtain a new document at least 120 days prior to document expiration Follow-up every 30 days with additional reminders Put employee on unpaid leave or terminate if unable to produce new document before expiration of prior document If new document has expiration date, put it in the tickler file Receipt Rule Under current rules, an employee who is unable to present a required document may present a receipt for a replacement document Receipt authorizes work for 90 days from the date of the receipt or expiration of the prior document, whichever is later DHS takes the position that an employee cannot use a receipt for a work permit renewal At the end of the 90-day grace period, employee must present the actual document We believe this could constitute document abuse discrimination Better practice is to let the employee produce any document from the lists 19

23 Photocopy Rule Copying of documents presented by the employee permitted but not required Copies must be kept with I-9 form Form must still be properly completed Photocopies can be used to correct problems identified during a periodic selfaudit or in advance of a government audit We do not recommend making photocopies instead, get it right the first time Retention of I-9 Forms I-9 forms must be retained for three years from the date work commences and for one year from the date employment terminates If you do not meet both tests, do not throw out the form This means an employer must have a form for every single current employee hired after November 6,

24 Retention of I-9 Forms Keep I-9 forms in files separate from employees personnel files, so that ICE/DOL does not obtain access to information in personnel files in the event of an audit We recommend you keep current employee forms separate from terminated employee forms Keeping I-9 forms separate makes it easier to pull them quickly in the event of an audit and easier to correct So, what do we do?? Audit your I-9 forms. Enforcement today will almost certainly begin with an I-9 audit by ICE. Use SSA online verification. DO NOT sign up for E-Verify or IMAGE programs until mandatory. Review and process mismatch letters. Follow the terms of the DHS safe harbor rule. Create paper buffer with contractors. Urge Congress to enact CIR. 21

25 Self-Audit Here is a step-by-step guide to conducting an audit of your I-9 compliance. Follow these steps carefully and you can reduce or eliminate your exposure for I-9 liability. Step 1 Generate a list of employees hired since November 6, It will be easier later if the list matches the order in which your I- 9 forms are filed. The list should show last name, first name, date of hire, date of termination, and some distinguishing fact, e.g., SSN or DOB, in case two employees have the same name. For persons rehired, show each start/term date. 22

26 Step 2 Calculate the retention dates for persons on the list by comparing date of hire, date of termination, and the date of your selfaudit. The easiest way to do this is to write down the date that is one calendar year prior to the audit date. That becomes the target termination date. Then subtract two years to get the target hire date. Highlight the names of those for whom you don t need to keep a form. Step 3 Pull forms for highlighted names from the I-9 file. Do not throw them away until someone else has confirmed that you need no longer retain the form by confirming that the two retention tests (three years from date of hire and one year from date of termination) have been met. Hold onto these forms in case you need them to complete a later I-9 form. 23

27 Step 4 Begin checking I-9 forms, working in the same order as the names on the list. As each form is reviewed, put a check mark on the list next to the appropriate name. Set aside forms for whom there is no name on the list as you go through it, as these are probably forms for people whose names changed. Step 5 Use stick-on notes to show problems with the forms. Be aware that forms may have multiple problems. Do not circle errors or write notes on original forms. 24

28 Step 6 Begin correcting forms that have been reviewed. If you have retained photocopies of documents, many form deficiencies may be cured. In addition, information from employee personnel files may be helpful. If anything is added to Section 1 of the form, remember to complete the Preparer/Translator portion of the form. Use the audit date as the date to insert in the Preparer/Translator portion of the form. Step 6.5 If information is added to the form, try to use the same color ink. Do not use correction fluid or tape to cover up incorrect information or for any other purpose; instead, simply cross out the incorrect information. If you are adding information to the form, it is optional to include the words Self-Audit and the date of the audit. 25

29 Correcting Forms Cannot fix late completions, untimely reverifications, or status information for terminated employees If information is missing, get it and add it to the form late is better than missing or wrong NEVER use correction fluid or blacken out information! Instead, line through the erroneous information in a nondestructive manner. Write the new information in the adjacent margin Optional to initial and date the change. Write self-audit next to change Step 7 If necessary, ask employees to sign or date Section 1 of the form or present correct documents. 26

30 Step 8 As forms are corrected, cross out items on the stick-on notes. When all items are crossed out, remove the stick-on note. When the form is correct, re-file it. Annotate the list to show how forms have been corrected. This helps identify recurring problems for training purposes. Step 9 There may be some forms which simply cannot be cured. For example, you may have terminated employees from whom you accepted invalid documents, but the form cannot yet be discarded. Annotate the list to show a major problem, remove the stick-on note, and re-file the form. 27

31 Step 10 When you have reviewed all forms and corrected all defects, review the annotated list to see what forms you are missing. See if any of the forms you set aside for lack of a name on the list should be filed under a different name. Any employees for whom no form can be found should be called in immediately to complete a form. Step 11 If a significant number of forms are missing or defective for terminated employees, consider keeping separate I-9 files for current and terminated employees. This may be helpful during the process of discarding forms periodically, and there is less likelihood that ICE will ask to see forms for terminated employees if the forms for current employees are in good shape. 28

32 Step 12 Add up the number of missing forms and major problems to calculate your exposure. Missing forms are generally penalized at around $1100 per form for the record-keeping violation plus around $1500 per person for a knowing employment violation. (ICE assumes that persons without forms are illegal.) Major problems usually result in fines of $1000 per form. Step 13 Discard forms that you are certain you need not keep. Follow the retention rule closely: Have I kept the form for 3 years from DOH?... And... Have I kept for form for 1 year form DOT? 29

33 Step 14 Plan your next I-9 audit. If your exposure in Step 12 is significant, consider immediate training of staff who complete I-9 forms so that you can minimize the potential exposure going forward. Filing System File all current employee forms alphabetically by last name in binders. For current employees with an employment authorization expiration date, create a tickler file. Label 15 manila folders one for each month and one for each of the next 3 years. Sort I-9s chronologically according to the date the work authorization expires. 30

34 More Filing System Sort I-9s chronologically according to the month or year the work authorization expires. Work this folder 30 days in advance and call in workers to remind them of the need to bring in documents for reverification and completion of Section 3 of the form. As you complete Section 3, re-file the form in the ticker or main alpha file. Still More Filing System Create the same manila folder system for terminated employee forms and sort them by month and/or year according to the discard date. Work this file two months behind i.e., two months prior to the current month. Confirm that the retention tests have been met before discarding forms. 31

35 List A Documents List B Documents 32

36 List C Documents THANK YOU David C. Whitlock, Esq. Miller & Martin PLLC Immigration Practice Group dwhitlock@millermartin.com 33