I-9 WEBINAR: HOW TO KEEP IMMIGRATION ENFORCEMENT FROM KNOCKING AT YOUR DOOR Q&A

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1 I-9 WEBINAR: HOW TO KEEP IMMIGRATION ENFORCEMENT FROM KNOCKING AT YOUR DOOR Q&A Jon Velie recently hosted a webinar with Ascentis on the subject of I-9 s. There was over 500 attendees from around the globe to learn from one of the most recognized immigration attorneys on the subject. This article highlights many of the questions that were asked during the webinar. You may also click here to download the presentation. Compliance Alert: How to Keep Immigration Enforcement From Knocking at Your Door Have you received a letter from Immigration Customs Enforcement (ICE) that your company must produce I-9 forms for inspection? If so, you are not alone. The U.S. government has taken immigration enforcement to historic new levels with record-breaking numbers of I-9 audits, fines and the increased criminal prosecution of employers. In 2011 alone, ICE conducted I-9 audits of almost 2,500 U.S. employers, criminally arrested 221 of them, and ordered more than $10.5 million in fines. (Source: ice.gov Nov. 4, 2011 press release). In order to increase the pressure on U.S. businesses to ensure they are hiring only those legally eligible to work in the U.S., ICE has stated that employers of all sizes and in every industry will be targeted by their inspectors, with stepped up resources that will support more auditors and more prosecutions. More than ever, compliance is critical. Don t let your company face an ICE investigation unprepared. I-9 Webinar Q & A Sheet Q: When will the new version of the I9 form be available? The current one expires on 8/31/12. Thanks! A: Use Current form until USCIS releases new version. Q: What should I do with term I-9s? Can they just go in a term I-9 file? A: Yes. All I-9s must be kept 3 years from date of hire or 1 year after termination, whichever date is later. Q: What service can we use to verify SSNs for new hires to ensure their papers are genuine? A: USCIS E-Verify Program and Social Security Number Verification System (SSNVS) online Q: What do we do when identification documents expire? Do we have to ask for new documents? A: As long as ID documents were unexpired at time of hire there is no need to update Q: What do you do when the HR team is located at HQ (Boston) and we hire someone in a remote office (San Francisco) do we have to see hard copies or can we validate a photo copy?

2 A: A hard copy of the id must be seen by an employee in the San Francisco office and they must sign the I-9 as well. Q: If we hire an employee who fills out an I9 and then leaves and comes back, do they fill out a new I9 form and throw out the older one on file? A: If the employee is rehired within 3 years, the employer must update section 3 of I-9 Q: What about employees who were hired prior to the effective date of the I-9 requirements. Do hey need to complete an I-9? A: If employee was hired before Nov. 6, 1986 then he/she does not need to complete the I-9. Q: We rehire co-ops and interns; do we need a new I-9 every time they return to work? A: If an employee is rehired within three years of the date on the I-9 was originally completed and the employee is still authorized to be employed on the same basis as previously indicated on this form (updating), complete Block B and the signature block.if the employee s work authorization has expired or is about to expire (recertification), complete Block B and 1. Examine any document that reflects the employee is authorized to work (List A or C) 2.Record the document title, number and expiration date in Block C. 3. Complete the signature block. For recertification employer has option to complete new I-9 instead of completing section 3. Q: We recently had an employee state that he DOES NOT have to provide us his S.S. Number for employment, and then went on to provide us a Driver s License and Birth Certificate for I-9 verification, but did not include his S.S. Number on the I-9 form. Could we legally hire him, or because he couldn t complete the I-9 fully, have the ability to use that as a reason to NOT hire him? A: Employers cannot specify which document(s) listed on the last page of Form I-9 employees present to establish identity and employment authorization. Employees may present any List A document or a combination of any List B and C document, but a social security number is required for the W-4 Q: We recently had a situation where an employee married and decided she wanted to hyphen her last name and change her name without making a change with Social Security. I said no since she would need to change her name with social security first. This person is our chief legal counsel and the GM said to just change it. HR went ahead and changed it Did we open our selves up for a miss-match? If so what can I do now? I am payroll in finance dept and HR made the change. A: There is no need to update if the information on the I-9 was correct at the time it was filled out. Q: We recently fired an employee for providing false documentation on immigration status. The employee worked 3 days for us before they were terminated, are we in any legal trouble?

3 A: No, that is the timeframe to have the List documents reviewed. Q: We had a recent new hire that lost his social security card but had a receipt from ssn office stating they had requested a new ssn card and it would be mailed to the employee within 2 weeks. Is this receipt ok to use as a document for I-9 until the actual replacement card is received? A: Yes, employee may present a receipt for the application for replacement of any List A, B or C document. Receipt is valid for 90 days. Replacement document must be shown by that time. Q: Can we accept expired documents? A: No. All list documents must be unexpired. Q: What do you do with I-9 s that have white out on them and person who did adjustment no longer works for you? Attach a note with possible explanation? Do a new one? A: A new one can be attached to the old one for audit purposes. Q: Where do we find out more about I-9 exceptions for employee from places such as Micronesia? A: List A Document specific to them would be Federated States of Micronesia or Republic of the Marshall Islands Passport with Form I-94/I-94A indicating nonimmigrant admission under one of the compacts of free association. Q: The employer handbook states an employer CAN use a previous I9 for a rehired employee if the employee is rehired within three years and the documents are still current can you explain your answer that we must have a rehired employee complete a new I-9 as if they had never worked before is this your best practice opinion or legal opinion? A: If an employee is rehired within three years of the date on the I-9 was originally completed and the employee is still authorized to be employed on the same basis as previously indicated on this form (updating), complete Block B and the signature block.if the employee s work authorization has expired or is about to expire (reverification), complete Block B &: 1. Examine any document that reflects the employee is authorized to work (List A or C) 2.Record the document title, number and expiration date in Block C. 3. Complete the signature block. For revierification employer has option to complete new I-9 instead of completing section 3. Q: Someone told me that if you enlarge a more recent Social Security Card to 400% the line under the signature says something in tiny print and that can help to verify it s a real SS Card. Is that true and do we have any obligation to do that? A: Micro-print does make up the signature line, but you aren t required to examine that.

4 Q: My Company employs independent contractors and we keep I-9s on them. Do we not have to maintain I-9s for Independent Contractors? A: You do not have to keep I-9s for contractors, only for employees. Q: If we continue to maintain them, is this against the law? A: No need to have them in the first place but do not believe it is against the law. Q: Is it a technical violation if a new employee signs the I-9 above the actual sign line? A: No. However if the employee has signed in the wrong place, have them sign in the correct location, as well as date and initial the form. Make a note in their file. Q: If you have not been consistent in copying all documents can you remove copied documents that have been attached on all? A: No need to remove. But if photocopies are made, they must be made for all new hires. So it must be consistent one way or the other. Q: Are you required to fill out new I-9 when an outdated I-9 form was filled out? A: If not a Feb. 09 Rev. or Aug. 09 Rev. Form then yes but retain the old form for audit purposes. Q: If you have not been consistent in copying all supporting documents can you remove copied documents that have been attached on all in order to be consistent? A: Moving forward it must be consistent, one way or the other, but no need to remove copied documents. Q: If the I-9s are stored electronically do the acceptable documents need to be completely visible? (For example the picture on an ID or passport.) A: Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they must be made for all new hires. Photocopies maybe used for the verification process and must be retained with Form I-9. Copies must be complete.

5 Q: If someone presents us an ID that looks to be a fraud what should the employer do? A: Reject it and ask for another document off List A, B or C. Q: I-9 forms signed by employee after date of hire employer thought it had 3 days after hiring. They are doing it correctly now any advise on how to explain this if audited. A: 3 day window is for presentation of List document(s) by employee. While not advised, this isn t a violation. Q: I have long term employees that filled the I-9 out 10 years ago. Do we need to refresh the I-9 form? A: Employers must retain completed Form I-9s for three years after the date of hire or one year after the date employment ends, whichever is later. No need to refresh unless work eligibility status has changed for any of the employees. Q: I had a new hire turn in an ss card that was clearly a fake. I check on all of my employee s with the ss admin. It came up not a match. I told the employee to bring in another from of documentation and to contact the ss admin department. He never came back. Did I violate anything? A: You acted correctly Q: Hired in the U.S. or other countries? A: All Employees (Citizen or non) hired after Nov and working in the US must complete an I-9 Q: For employees that are confused and have questions How do you help without opening yourself up to violations? A: You may help an employee who needs assistance in completing section 1 of the I-9. You must also complete the Preparer/Translator certification block and have the employee sign the document, if you or your team is translating into another language. Q: Earlier in the presentation it was stated to keep term d I-9s for a certain period of time. What do you do with the I- 9s that a company no longer needs to keep on file? A: Destroy forms in such a manner to remove all sensitive information. (Shred) Q: We hire a lot of temporary employees through staffing companies, are we still liable for I-9 fraud?

6 A: If employee is hired and kept on by your company then an I-9 is needed. If they are under the employment of the temp agency and placed in your office then you are not required to have their I-9. Q: Will the I-9 form change August 31? A: USCIS is in the process of updating the I-9, however it has not yet been approved. Continue using current I-9 form (Rev. 08/07/09) Q: If using E-verify do you still need to use I-9 form? A: Yes. All Employees (Citizen or non) hired after Nov and working in the US must complete an I-9 Q: Do you have to keep copies of the support from column a or b and c? A: Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they must be made for all new hires. Photocopies may be used for the verification process and must be retained with Form I-9. Q: Do you have to have an I-9 for each and every employee. If we had one and it was misplaced do we need to fill out another form? A: Yes every employee hired after Nov must have an I-9 on file. Q: Do you have any information on the new form I-9 that will be in use following the expiration of the current form at the end of the month? A: Continue to use current form until USCIS releases the new version. Q: Could an employer keep an additional copy of the I-9 documents in the personnel file (to make sure the name is spelled correctly and the number is keyed correctly in the payroll system)? A: The form will be kept by the employer so it can be made available for inspection by authorized officials Q: Can you store the photocopies of I9 documents along with the I9 itself? We have been storing them separately. A: Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they must be made for all new hires. Photocopies may be use for the verification process and must be retained with Form I-9. The most common practice is to keep copies of supporting documents in the I-9 file.

7 Q: When an employee s documentation has expired, should we re-verify? A: If the employee s work authorization has expired or is about to expire (reverification), complete Block B and 1. Examine any document that reflects the employee is authorized to work (List A or C) 2.Record the document title, number and expiration date in Block C. 3. Complete the signature block. For revierification employer has option to complete new I-9 instead of completing section 3. Q: Can you please clarify the retention of the I-9 document 3 years after hire or 1 yr after separation, whichever is later. A: That is correct. The form must be kept for as long as the employee is working for the company. If an employee is hired and terminated in less than 2 years, the form would be kept for 3 years after the hire date. If an employee is hired and works longer than 2 years, the I-9 would need to be kept until 1 year after that employee s separation. Q: Is the e-verify considered a part of the I-9 form, kept with it and destroyed same as I-9 form, or can is be a part of the personnel file? A: E-verify is an optional service. In that case you could do either. Q: DO they have to input the start date in the middle section of the i-9 form? A: Section 2 to be filled by Employer Q: Should potential WOS candidates be I-9 d? (Without salary) A: If anything of value is given in exchange for labor or services rendered by an employee, including food and lodging, an I-9 would be required. Q: What if a person s name is entered incorrectly and the e-verify comes back confirmed. Should you re-verify using corrected information or contact e-verify and take a verbal ok? A: Re-verify using correct information Q: Can you go over I-9 requirements for individuals who join your organization on different visas (ex: L-1, H-1B, Business Visa, etc.) A: All Employees (Citizen or non) hired after Nov and working in the US must complete an I-9. The Visas you re referring to are Nonimmigrant (temporary) Visas. The correct box in section 1 of the I-9 pertaining to residency must

8 be checked. Must recertify the I-9 at renewal of visa or work authorization. Green Card holder would select Lawful Permanent Resident Q: Can you as an employer request a copy of a new hires SS card? A: Employers cannot specify which document(s) listed on the last page of Form I-9 employees present to establish identity and employment authorization. Employees may present any List A document or a combination of any List B and C document. Q: Can request document the document within 24 hours A: Must be presented by the 1st day of work. Q: Does the I9 have to be on site, or could it be in storage? A: Either, I-9 must be able to be produced. Q: Can INS take our notebooks for audits? A: Yes Q: Do we include the IDs with the Notebook? A: Yes if the employer has them Q: Are there any organizations that are exempt from completing I-9s? Such as churches or other religious organizations? A: No. All Employees (Citizen or non) hired after Nov and working in the US must complete an I-9 Q: An employee with and H2A visa do they need to complete an I9 form? A: Yes. They must mark correct the box in the residency portion of section 1 on the I-9. Q: An employee could not find their birth certificate but supplied me with documentation that he applied for a duplicate (on his date of hire). Can I use this until he provides me with his replacement document?

9 A: Yes, employee may present a receipt for the application for replacement of any List A, B or C document. Receipt is valid for 90 days. Replacement document must be shown at that time. Q: Also, if it is a re-hire, you said they need a new I9. But is there a time frame where the old one can be used say within 3 months or 6 months- between termination and rehire? A: If an employee is rehired within three years of the date on the I-9 was originally completed and the employee is still authorized to be employed on the same basis as previously indicated on this form (updating), complete Block B and the signature block.if the employee s work authorization has expired or is about to expire (reverification), complete Block B and 1. Examine any document that reflects the employee is authorized to work (List A or C) 2.Record the document title, number and expiration date in Block C. 3. Complete the signature block. For reverification employer has option to complete new I-9 instead of completing section 3. Q: What about seasonal staff. a new I9 each season? A: Not unless the staff consists of different employees or the employment authorization of any of the rehires has changed.

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