WHERE LAW AND BUSINESS MEET. I-9 Fast Facts

Transcription

1 WHERE LAW AND BUSINESS MEET I-9 Fast Facts

2 FORM I-9 EMPLOYMENT ELIGIBILITY VERIFICATION The Immigration Reform and Control Act of 1986 (IRCA ) requires all employers to confirm the identity and employment eligibility of any employee hired in the United States after November 6, To comply with the law, employers must complete and retain a Form I-9, Employment Eligibility Verification, for each new hire. The Department of Homeland Security (DHS) can request copies of an employer s I-9 forms via a subpoena or the issuance of a Notice of Inspection. In carrying out their I-9 obligations, employers must refrain from engaging in any activities which violate any anti-discrimination laws. I-9 COMPLETION TIPS An employer may not begin the I-9 process until it offers an individual a job, and he/she accepts the offer. A B C D E F G H! SECTION 1. Employee information and attestation To be completed only by the employee unless there is a preparer or translator certification Must be completed and dated no later than the first day of employment, and no earlier than the acceptance of job offer If no other name, write N/A Optional unless the employer is an E-verify participant Optional: write N/A if information is not provided Entry required if Lawful Permanent Resident ( Green Card holder) Employment eligibility must be re-verified before expiration date, and Part 1 or 2 must be completed Must be completed any time someone assists employee in completing Section 1 The employer must ensure that Section 1 is completed correctly and on time A H Employment Eligibility Verification Department of Homeland Security U.S. Citizenship and Immigration Services USCIS Form I-9 OMB No Expires 03/31/2016 START HERE. Read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because the documentation presented has a future expiration date may also constitute illegal discrimination. Section 1. Employee Information and Attestation (Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.) Last Name (Family Name) Address (Street Number and Name) Date of Birth (mm/dd/yyyy) U.S. Social Security Number Address Middle Initial Other Names Used (if any) Apt. Number City or Town State Zip Code Telephone Number I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form. I attest, under penalty of perjury, that I am (check one of the following): A citizen of the United States A noncitizen national of the United States (See instructions) A lawful permanent resident (Alien Registration Number/USCIS Number): An alien authorized to work until (expiration date, if applicable, mm/dd/yyyy) (See instructions) For aliens authorized to work, provide your Alien Registration Number/USCIS Number OR Form I-94 Admission Number: 1. Alien Registration Number/USCIS Number: 2. Form I-94 Admission Number: If you obtained your admission number from CBP in connection with your arrival in the United States, include the following: Foreign Passport Number: Country of Issuance: Some aliens may write "N/A" on the Foreign Passport Number and Country of Issuance fields. (See instructions) Signature of Employee: Signature of Preparer or Translator: - - First Name (Given Name). Some aliens may write "N/A" in this field. Date (mm/dd/yyyy): Preparer and/or Translator Certification (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct. Last Name (Family Name) Date (mm/dd/yyyy): Address (Street Number and Name) City or Town State Zip Code Form I-9 03/08/13 N OR D G Employer Completes Next Page F First Name (Given Name) E C 3-D Barcode Do Not Write in This Space B Page 7 of 9

3 ! M The employer or its representative must view the original documents in the physical presence of the employee. Section 2. Employer or Authorized Representative Review and Verification (Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee's first day of employment. You must physically examine one document from List A OR examine a combination of one document from List B and one document from List C as listed on the "Lists of Acceptable Documents" on the next page of this form. For each document you review, record the following information: document title, issuing authority, document number, and expiration date, if any.) Employee Last Name, First Name and Middle Initial from Section 1: List A OR List B AND List C Identity and Employment Authorization Identity Employment Authorization Certification I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States. The employee's first day of employment (mm/dd/yyyy): K (See instructions for exemptions.) Signature of Employer or Authorized Representative Last Name (Family Name) First Name (Given Name) Employer's Business or Organization Address (Street Number and Name) Date (mm/dd/yyyy) City or Town Title of Employer or Authorized Representative Employer's Business or Organization Name State Zip Code Section 3. Reverification and Rehires (To be completed and signed by employer or authorized representative.) A. New Name (if applicable) Last Name (Family Name) First Name (Given Name) J 3-D Barcode Do Not Write in This Space Middle Initial B. Date of Rehire (if applicable) (mm/dd/yyyy): C. If employee's previous grant of employment authorization has expired, provide the information for the document from List A or List C the employee presented that establishes current employment authorization in the space provided below. I attest, under penalty of perjury, that to the best of my knowledge, this employee is authorized to work in the United States, and if the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual. L I I J K L M N N SECTION 2. Employer or authorized representative review & verification Employer must enter complete employee name Employer should provide employees with a copy of the List of Acceptable Documents to choose from and not specify the documents employees should present First day of employment must be entered Must be signed no later than 3 business days after the first day of employment SECTION 3. Reverification and rehires Employer must complete when there is a name change, upon rehire, and/or employment re verification is required Must be completed, if applicable, on the most current version of Form I-9. When using a new I-9 to complete Section 3, the employee name must be entered in Section 2. Signature of Employer or Authorized Representative: Date (mm/dd/yyyy): Print Name of Employer or Authorized Representative: Form I-9 03/08/13 N Page 8 of 9

4 BEST PRACTICES FOR I-9 EMPLOYMENT ELIGIBILITY VERIFICATION COMPLIANCE In order to establish an effective I-9 compliance program, companies must take into consideration their culture, resources, and needs. While there is no one size fits all strategy, an effective I-9 compliance program should include at minimum the following: 1 Integration of I-9 policy with the overall personnel policy, materials and applications. The I-9 policy should be in writing, published, and communicated to the entire workforce. The policy must state that the company requires the proper and timely completion and retention of Form I-9 for all employees hired after November 6, It should also state it will not hire individuals who do not timely provide the requisite identity and employment eligibility documents, that it conducts timely I-9 re-verification, holds regular I-9 trainings for all company representatives who are part of the recruitment, orientation, and hiring processes, that it does not tolerate any form of discrimination based on national origin or citizenship, and if applicable, the company participates in E-Verify. 2 An overall I-9 compliance administrator. An I-9 compliance administrator should be designated for the company. This person should be charged with centralized oversight, management, and training regarding the I-9 compliance program. The goal is to create a uniform culture of I-9 compliance throughout the company. 3 Guidance on I-9 procedures and clarification to all company employees who have hiring authority or are part of the hiring process concerning: a. When verification and reverification must be completed; b. What questions may be lawfully asked prior to the actual offer of employment, and c. To whom employees should be referred for guidance and assistance on I-9 verification procedures. 4 Guidance on I-9 verification for employees charged with the implementation of I-9 procedures. 5 Clear instructions for internal I-9 audits. To ensure compliance and mitigate damages, the company should have legal counsel conduct annual I-9 audits or, at minimum, an initial audit of all existing I-9s. An audit of the company s I-9s will allow the company to determine errors and violations being committed to determine the areas of training needed for company personnel. In addition, an audit conducted by legal counsel will protect the I-9 audit results under attorney-client communication and/or attorney work product privileges. I-9 Do s Do establish a company-wide written I-9 policy addressing I-9 procedures, SSA no-match letters follow-up procedures, I-9 audits, and re-verification procedures Do appoint an I-9 administrator (or I-9 administrators) for the company Do have a third-party with I-9 audit expertise conduct a semi annual audit of the company s I-9s Do maintain I-9 files separately from hiring and personnel files Do maintain a consistent policy as to whether the company will or will not make photocopies of original I-9 supporting documents Do conduct annual I-9 trainings for employees involved with the I-9 process Do consider the pros and cons of registering with E-Verify if the company is not already required to register under state law or as a federal contractor/subcontractor Do establish an I-9 audit response plan to ensure responsible personnel know what to do and who to call if there is a government investigation I-9 Don ts Don t assume your I-9s are perfect Don t complete Section 1 on behalf of employee by pre populating the employee s data in Section 1 Don t make specific requests for certain documents from employees to complete the I-9 Don t use the Social Security Number Verification Service to verify I-9 information Don t require or accept more documents than are required for the I-9 process. Employers can be fined for document abuse or I-9 over-documentation Don t use white-out to correct I-9 errors. Corrections should be visible. Each correction must be dated and signed or initialed Don t be inconsistent in the use of E-Verify for employees if you are an E-Verify employer

5 FAQ S Can an employer complete the I-9 before the start date of employment? An employer can have the I-9 completed once an offer has been made and it has been accepted. Employers should implement procedures which will not expose them to any anti-discrimination violations. What part of the I-9 form must be retained in a company s I-9 files? Employers should retain the page(s) containing Section 1, 2, and 3 of Form I-9. Employers do not need to retain the instruction pages or List of Acceptable Documents with each employee s I-9. How long should Form I-9 be kept? Form I-9 must be kept for all current employees and certain terminated employees. For terminated employees, the I-9 must be kept for three years from the date of hire or one year from the date of termination, whichever is later. Can Form I-9 be stored electronically? Yes, employers may use paper, electronic systems, or a combination of paper and electronic systems. See Employer Handbook, M When should an I-9 be re-verified for employment authorization? If an employee provides a List A or C document that shows temporary employment eligibility, Form I-9 must be re verified PRIOR to the expiration date. What is an A number, USCIS number and I-94 number? In some cases an A number (or Alien Reg. Number) is assigned by the Department of Homeland Security. This number begins with the letter A and is followed by nine digits. If an employee shows a permanent resident card as a List A document the A number may be entered as the document number. The United States Citizenship and Immigration Service (USCIS) can also issue USCIS number for individuals seeking benefits from it. An I-94 arrival/departure record contains an 11 digit number, and will show an expiration date. The date on the I-94 record determines the person s eligibility to remain in the U.S. When are receipts acceptable? Receipts are acceptable if they are receipts for lost, stolen, or damaged original documents. An employer must re-verify an I-9 within 90 days of the completion of the I-9 when a receipt is presented. Please also see the Employer Handbook, M regarding the receipt rule for lawful permanent residents and refugees. How can I complete an I-9 for a remote site employee? The employer must have an individual who will act on behalf of the company as its representative for the I-9 process. The company s representative must view and confirm the original documents in person with the employee and complete section 2 of the original form I-9. Can an employer still complete an I-9 for an employee after it is determined that an I-9 is not on file for the employee? Yes, the employer should complete an I-9 as soon as it is determined there is no I-9 on file for the employee. Even though it is untimely, DHS will recognize the good-faith efforts by the employer. Should an employer re-verify an I-9 before the lawful permanent resident (I-551) card expires? No, re-verification is required FOR LAWFUL PERMANENT RESIDENTS only when a temporary I-551 stamp is presented. If an employee contacts an employer to change his/her name on the I-9, can the employer require documentation evidencing the name change? No, an employer cannot require the employee to present documentation of the new name but can ask the employee as to why there is a name change. If an employer forgets to run an employee through E-Verify, can the employer process the employee through E-Verify after more than three days from the start date of employment? Yes, an employer can still process the employee through E-Verify and explain in the notes section the reason(s) for its untimeliness. When re-verification is required, can Section 3 of the original I-9 form be completed? Section 3 of the original I-9 form should only be completed if it is the most current version of form I-9. Otherwise, employer can complete Section 3 of a new I-9. The employee name should be entered in the space provided on the top of Section 2 and attach the completed Section 3 to the original I-9. Can an expired driver s license be accepted as a List B document, if a paper extension is attached? Yes, however, this would be considered a receipt, and the original valid List B document must be presented within 90 days. The document title should be entered, write the word receipt under document number, and enter the date that the receipt is valid (90 days from the first day of employment). Once the original valid document is presented within the 90 day window, receipt should be crossed out and the correct document number and expiration date should be entered. Can a student identification card be presented as a List B document regardless of the age of the employee? The student identification card must be valid and include a photo of the employee. Does the three-day period from the date of employment for the employer to certify Form I-9 include weekends and/or holidays? No, it does not include holidays and/or weekends unless the company is open for business during those days. Employers have three business days from the date of employment to complete a timely I-9. Is an employer required to copy and retain the documents presented in order to complete Form I-9? No, it is not a requirement to keep copies of documentation presented for the I-9 process. Employers who choose to make and retain copies should do so consistently for all employees. Please note that employers who maintain copies of supporting documents can use them to make corrections for paperwork violations and avoid certain fines during a government I-9 audit. Are expired documents acceptable? No. An employee is not permitted to show an expired document for any List A, B, or C documents.

6 Main Contacts LAURA J. DANIELSON ROBERT D. ARONSON LOAN T. HUYNH DEBRA A. SCHNEIDER JUNE CHENG ASHLEY J. ROTH main fax fredlaw.com Offices / Minneapolis / Bismarck / Des Moines / Fargo / St. Paul / Monterrey, Mexico / Shanghai, China Member of the World Services Group A Worldwide Network of Professional Service Providers