The impact of I 9 and E Verify Legislation on U.S. Employers

Transcription

1 The impact f I 9 and E Verify Legislatin n U.S. Emplyers July 12, 2011 This paper will examine the current status f I 9 and E Verify legislatin and hw changes have and may cntinue t impact U.S. emplyers.

2 The Immigratin Refrm and Cntrl Act f 1986 (IRCA) prhibits emplyers frm hiring and emplying peple wh are nt legally eligible t wrk in the United States. The law als prhibits emplyers frm hiring any persn fr emplyment in the U.S. withut first verifying his r her identity and emplyment authrizatin n Frm I 9. While this law has been in effect fr mre than 25 years, it has just recently attracted daily media cverage. This attentin t the law came as the Obama administratin has made it a pririty t crack dwn heavily n cmpanies wh emply illegal wrkers. In a lead stry in June, The Wall Street Jurnal reprted that 1,000 cmpanies acrss all 50 states were recently ntified that the gvernment plans t inspect their hiring recrds. Whether yu are ne f these 1,000 cmpanies r nt, this news shuld prvide pause and demand a reality check fr emplyers. D yu fllw the letter f the law? If nt, nw is the time t review yur prcesses and ensure they are in line with the IRCA guidelines. Fr cmpanies that are unsure if they fllw the law, this white paper will address the current status f the I 9 laws and envirnment, and prvide suggestins fr hw cmpanies can becme and stay cmpliant. Why Is I 9 Making News Nw? Over the last tw years, the fcus f Immigratin and Custms Enfrcement (ICE), the divisin that is respnsible fr verseeing I 9 cmpliance, has radically changed. During the eight years f the Bush administratin, ICE fcused n finding and taking int custdy as many illegal wrkers as pssible. The Obama administratin has chsen t attack the issue frm a different angle, fcusing where the prblem starts the emplyers wh hire illegal wrkers. In their assault n these emplyers, the highprfile raids, arrests and deprtatins f the 2000 s have shifted t audits, fines and prsecutins. Fr thse wh understand the cnsequences f an I 9 audit, the thught likely makes the bld run cld. Fr a nn cmpliant cmpany, an I 9 audit can lead t bth civil and criminal penalties. Cmpanies fund guilty f I 9 nn cmpliance may be fined, barred frm cmpeting fr gvernment cntracts and even brught up n criminal charges f knwingly emplying illegal wrkers, evading taxes and identity theft. Hw Can Yu Avid the Magnifying Glass f the Administratin? As with any crime, the easiest way t avid an I 9 audit is t give the gvernment n reasn t lk at yur cmpany s hiring practices r mre simply, fllw the law and d nt hire illegal wrkers. Hw can yu ensure that an illegal wrker desn t slip by yur checks and balances? Develp a strng emplyment eligibility verificatin prcess which includes using Frm I 9 t verify ptential emplyees identities. Fr thse unfamiliar with the law, the cncept is fairly simple newly hired emplyees must prve at the start f their emplyment that they have the legal right t wrk in the United States. This prf prcess includes filling ut Frm I 9 cmpletely and withut errr, signing and dating the frm in a declaratin that the emplyee swears they are telling the truth, and prviding prper apprved identificatin. The mre detailed prcess, accrding t the U.S. Citizenship and Immigratin Services Handbk fr Emplyers, Instructins fr Cmpleting Frm I 9, is as fllws: Emplyers must cmplete Frm I 9 fr every persn hired n r befre Nvember 6, 1986.

3 Ensure that the emplyee cmpletes Sectin 1 f Frm I 9 by his r her first day f wrk fr pay. Emplyees may cmplete Sectin 1 f Frm I 9 at any time between acceptance f a jb ffer and the first day f wrk fr pay. Review the emplyee s dcument(s) and fully cmplete Sectin 2 f Frm I 9 within three business days f the first day f wrk fr pay. Fr example, if the emplyee begins wrk n Mnday, yu must cmplete Sectin 2 by Thursday. If yu hire a persn fr fewer than three business days, Sectins 1 and 2 f Frm I 9 must be fully cmpleted by the emplyee s first day f wrk fr pay. Yu may nt begin the Frm I 9 prcess until yu ffer an individual a jb and he r she accepts yur ffer. Keeping accurate and up t date recrds f these frms is an imprtant step in the prcess. Make sure yur prcesses are cnsistent and yur dcumentatin is accurate. D nt file Frm I 9 with U.S. Immigratins and Custms Enfrcement. The frm must be kept by the emplyer either fr three years after the date f hire r fr ne year after emplyment is terminated, whichever is later. The frm must be available fr inspectin by authrized U.S. Gvernment fficials (Department f Hmeland Security, Department f Labr, and Department f Justice) within three days f the date n which the frms were requested. Frms I 9 can be retained either n paper r micrfilm, r electrnically. If yu retain Frms I 9 electrnically, yu must implement a recrds security prgram s that the emplyees persnal infrmatin is prtected frm getting int the wrng hands. Fr mre detailed infrmatin and t dwnlad the mst current I 9 frms, visit pdf; t dwnlad just Frm I 9, visit 9.pdf. What Dcumentatin Is Acceptable? T prve their identity and authrizatin t wrk, emplyees must prvide ne dcument frm List A, OR, ne dcument frm each f Lists B and C can be prvided tgether t satisfy the requirements. List A: Dcuments that establish bth identity and emplyment authrizatin. U.S. Passprt Permanent resident card Freign passprt that cntains a temprary I 551 stamp r temprary I 551 printed ntatin n a machine readable immigrant visa Emplyment authrizatin card that cntains a pht Fr nnimmigrant aliens authrized t wrk fr a specific emplyer, a freign passprt with Frm I 94 r Frm I 94A bearing the same name as n the passprt with an endrsement f the alien s nnimmigrant status Passprt frm the Federated States f Micrnesia (FSM) r the Republic f the Marshall Islands (RMI) with Frm I 94 r Frm I 94A indicating nnimmigrant admissin under the Cmpact f Free Assciatin between the U.S. and FSM r RMI List B: Dcuments that establish identity Driver s license ID card issued by federal, state r lcal gvernment agencies r entities cntaining pht

4 Vter registratin card Schl ID with phtgraph U.S. military card r draft recrd Native American tribal dcument List C: Dcuments that establish emplyment authrizatin Scial Security card Original r certified cpy f U.S. birth certificate U.S. citizen I.D. card (Frm I 197) I.D. card fr use f Resident Citizen in the U.S. (Frm I 179) Native American tribal dcument Emplyment authrizatin issued by the Department f Hmeland Security It Seems Like a Lt T Manage Is There Help T Make Sure We Are Cmpliant? Emplyers are mandated by Federal Law t use this infrmatin t certify that their new hires are legal by the Immigratin Refrm and Cntrl Act and its I 9 cmpliance frm. T ensure cmpliance, many use E Verify, an internet based system that cmpares the infrmatin prvided by the emplyee t gvernment recrds t cnfirm that the emplyee is authrized t wrk in the U.S. As the law stands nw, participatin in the federal E Verify prgram is vluntary. Hwever, Senate bill 1196 is seeking t change this, and make participatin mandatry. State and lcal laws in Arizna, Gergia, Mississippi, Suth Carlina, Tennessee and Utah already require emplyers t check the legal status f emplyees thrugh the federal E Verify database. Many ther states have similar legislatin pending. What Happens If We Dn t Cmply? Fines fr simple Frm I 9 vilatins range frm $110 t $1,100 per vilatin, with larger fines fr larger vilatins and higher percentages f mistakes. Civil and criminal penalties are als pssible. Since January 2009, ICE has audited mre than 3,200 emplyers and, as a result, has debarred 225 cmpanies and individuals frm federal cntracting, and impsed mre than $50 millin in financial sanctins. Fines levied against emplyers have increased frm apprximately $1 millin in 2009 t a recrd $7 millin in It is these actins that have really brught I 9 int the news, as the penalties are mre than what were leveraged against emplyers during the entire Bush administratin. As an example f hw seriusly ICE takes I 9 cmpliance, clthing retailer Abercrmbie & Fitch was fined $1 millin after an audit f the cmpany s I 9 recrds fund vilatins. The cmpany used electrnic sftware t cmplete the I 9 frms and retain the apprpriate recrds as required by the Immigratin & Natinality Act. Hwever, the audit fund numerus deficiencies in the sftware that the cmpany had selected which is A&F s respnsibility t bear, nt that f the sftware maker. In anther case, Chiptle Grill s I 9 audit resulted in the firing f hundreds f wrkers in its restaurants arund the cuntry, emplyee lawsuits, negative publicity, and an investigatin by the District f Clumbia s criminal divisin. Summary In cnclusin, thugh the buzz arund I 9 Cmpliance is new, the laws are nt. Emplyers have knwn fr ver 25 years that they must verify their emplyees right t wrk in the United States. T avid

5 investigatin, fllw the law by implementing a cmprehensive, cmpany wide I 9 prcess that all invlved in hiring in yur cmpany are aware f, understand, and can fllw. Tls like E Verify can help emplyers simplify their prcess, and ultimately ensure their cmpliance f the laws and avidance f fines and ther penalties. Cmpanies like CARCO Grup, Inc., ffer user friendly E Verify slutins fr cmpanies f all sizes. T learn mre, visit This dcument is infrmatinal nly and is nt meant t be cnstrued as legal advice. Yu shuld cnsult with I 9 experts and yur legal team t ensure I 9 and E Verify cmpliance. Abut CARCO Grup, Inc.: Funded in 1977 CARCO Grup, Inc. is a natinally recgnized wrkflw slutin and backgrund screening cmpany that perfrms cmprehensive backgrund investigatins n ptential and current emplyees, vendrs, custmers, and business partners, as well as fingerprinting and drug testing. CARCO s best in class Onbarding Slutin helps ur clients eliminate the paper based hiring prcess by allwing applicants t data enter their credentials/infrmatin using nline applicatins r kisks thereby eliminating the date entry (labr csts) that a client r vendr incur. CARCO cntinues t make significant advances in the emplyment screening industry. Recgnized as a natinal leader in quality f service, timely reprting, cst effectiveness, state f the art technlgy prgrams, and legal expertise in emplyee screening, CARCO serves many f the cuntry s leading crpratins. Thrugh its technlgy, CARCO is able t quickly respnd t changing custmer needs.