IMMIGRATION REFORM AND CONTROL ACT (IRCA)

Transcription

1 IMMIGRATION REFORM AND CONTROL ACT (IRCA) August 25, 2015 TMHRA Nuts and Bolts Workshop Elizabeth M. Provencio Denton, Navarro, Rocha, Bernal, Hyde & Zech, PC

2 IRCA Immigration Reform and Control Act of 1986 Established new paperwork and record keeping rules Included anti-discrimination provisions Applied to all persons including U. S. Citizens

3 REQUIRED To comply, an employer must: Verify the identity and employment authorization documents of employees hired after 11/6/86 Complete and retain a Form I-9 for each employee Refrain from discriminating against individuals on the basis of actual or perceived national origin, citizenship or immigration status

4 IRCA S I-9 An employer must (1) not knowingly hire, or continue to employ any person not authorized to work in the U.S. (2) verify the identity and employment eligibility of every new employee Note most recent version is 03/08/13

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7 FORM I-9 Provides a record for government investigators Affords employers a good faith defense against potential charges Provides for 3 categories: (1) U.S. Citizens (2) lawful permanent residents (a.k.a. Green Card holders) who have unlimited right to work in the U.S. (3) other non-citizens having some type of time-limited right to work

8 SECTION 1 Requires employee completion on the date of hire Employee must attest on the I-9 form under penalty of perjury he or she is not an unauthorized alien and that the documents are genuine and relate to him or her Employer must provide List of Acceptable documents when completing the Form I-9 (One document from List A or one document from List B and List C)

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10 SECTION 2 Requires employer completion within 3 business days of hire Attest under penalty of perjury it examined original documentation presented by the employee and it appears to be genuine and related to the named individual To the best of the employer s knowledge, employee is authorized to work in the U.S. If employer photocopies documents, it must do so for all employees, or you may be in violation of anti-discrimination laws.

11 GENUINE Incorporates reasonableness must accept a document presented by an employee if it reasonably appears to be genuine and relates to the individual presenting it Must be original exception for certified copy of a birth certificate Good faith defense even if documents turn out to be fraudulent Nothing seems unusual should be sufficient Employer may not insist on seeing a specific type of ID or work eligibility document

12 REPLACEMENT DOCUMENTS If employee is unable to present the required documents within 3 business days of the date of hire he/she must produce a receipt he/she applied for a replacement (90 days permitted) Receipts may be used as temporary proof of employment eligibility when a List A, B or C document has been lost, stolen or damaged. The receipt must be issued by the originating agency. The employee must present a replacement document within 90 days of the hire date. Note: Receipts are never acceptable if employment will last less than 3 business days.

13 WHO Employees hired before effective date of IRCA November 6, 1986 grandfathered New hires Reverification using Section 3 if his or her temporary employment authorization has expired Reverification for a rehire within 3 years of the date of the initial execution of the Form I-9 USCIS recommends completing a new Form I-9 for rehires

14 CURRENT EMPLOYEES Generally not required to undergo I-9 verification, except: 1. Employer failed to completely comply with IRCA until now 2. I-9 audit uncovers serious omissions or deficiencies

15 INDEPENDENT CONTRACTORS Not required to complete an I-9 An independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. When it is not so clear complete an I-9

16 INDEPENDENT CONTRACTORS Factors considered: Contract to do a job according to their own means and methods. Supply their own tools or materials. Offer their services to the general public. Work for a number of clients at the same time. Have an opportunity for profit or loss as a result of labor or services provided. Invest in facilities to do all or part of the work. Direct the order in which the work is to be done. Determine the hours during which the work is to be done. Are subject to control only as to results.

17 TEMPORARY OR STAFFING AGENCIES If you use a temporary or staffing agency to obtain workers, those workers are employees of that agency and provide service to your city as independent contractors. The agency completes a Form I-9 for each worker they provide to your city, because the workers are considered employees of the agency, not of your city. An agency may complete Form I-9 before one of its workers accepts a particular assignment, even if: The worker has not yet been offered or accepted an actual assignment. There is the possibility that no actual work may arise from the arrangement.

18 RETENTION OF FORMS Form I-9 must be on file for all current employees May be stored on site, off site or electronically Must be made available within 3 days of an official request for inspection Ensure authorized personnel only have access Must be maintained in the employers files for 3 years or until one year after any termination of employment, whichever is longer

19 CORRECTING FORM I-9 If you discover a mistake on Form I-9, correct the existing form or prepare a new Form I-9 If you correct existing, line out incorrect information and add correct information and initial and date the correction If you do a new Form I-9, retain old form, attach a short memo to both the new and old Forms I-9 stating the reason for your action Missing forms: immediately provide employee with a Form I-9, allow 3 business days to provide acceptable documents, DO NOT backdate the Form I-9

20 COMPLIANCE TIPS Advise in employment application they will be required to submit verification first day of work Complete same day as other forms (insurance, W-4) Maintain I-9 in separate file Initiate uniform practices (avoid discrimination)

21 PREVENTING DISCRIMINATION Four types of unlawful conduct: Citizenship or immigration status discrimination (actual or perceived) National origin discrimination Document abuse during Form I-9 process Retaliation

22 REVIEWING AGENCIES EEOC DOJ OFCCP DOL OSC Others may review for compliance DHS enforces the INA requirements on verification of employment eligibility. DOJ enforces the anti-discrimination provision.

23 I-9 INSPECTION 3 business days for inspection Immediate production with a warrant/subpoena

24 E-VERIFY Internet-based system that compares information from an employee s Form I-9, to data from DHS and the Social Security Administration records to confirm employment eligibility Governed by a Memorandum of Understanding Requires employer to display certain notices in a prominent place clearly visible to prospective employees and all employees who are to be verified through the system May be required for federal contracts

25 E-VERIFY The Employer agrees to comply with current Form I-9 procedures, with two exceptions: a. If an employee presents a "List B" identity document, the Employer agrees to only accept "List B" documents that contain a photo. If an employee objects to the photo requirement for religious reasons, the Employer should contact E-Verify at b. If an employee presents a DHS Form I-551 (Permanent Resident Card), Form I-766 (Employment Authorization Document), or U.S. Passport or Passport Card to complete Form I-9, the Employer agrees to make a photocopy of the document and to retain the photocopy with the employee s Form I-9. The Employer will use the photocopy to verify the photo and to assist DHS with its review of photo mismatches that employees contest. DHS may in the future designate other documents that activate the photo screening tool. Note: Subject only to the exceptions noted previously in this paragraph, employees still retain the right to present any List A, or List B and List C, document(s) to complete the Form I-9.

26 QUESTIONS? Elizabeth Provencio Denton, Navarro, Rocha, Bernal, Hyde and Zech, PC 2517 North Main Avenue, San Antonio, Texas (210)