Immigration Compliance: I-9 Violations; Self-Audits; Correcting Errors on I-9s; E-Verify in Tennessee

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1 Immigration Compliance: I-9 Violations; Self-Audits; Correcting Errors on I-9s; E-Verify in Tennessee August 14, 2014 Presented by: Bruce E. Buchanan Siskind Susser, P.C st Ave. South, Suite 201 Nashville, TN (615)

2 ICE Statistics FY ICE inspected over 3100 employers in FY 2013, up 600% from FY 2008; ICE issued 495 final Orders to Employers for fines of more than $12.7 million in FY 2012; ICE criminally charged 238 managers/owners in FY 2012 with immigration-related violations;

3 Examples of Substantive Violations 1. Failure to prepare I-9 form; 2. No status box checked or more than one box checked;. 3. Failure of employee to sign and/or date; 4. Failure of employer to sign and/or date; 5. A # missing altogether; and 6. Failure to list document information, with no legible copy of document attached to I-9.

4 Examples of Technical Violations 1. Home address or DOB not listed; 2. Untimely preparation of Section 1 or 2 not on 1 st day or w/in 3 days of 1 st day of employment, respectively; 3. A # missing in Section 1 (but listed in Section 2 or on legible copy of document); 4. Some information missing in Lists A, B or C, such as expiration date, but listed on legible copy of document attached to I-9 form); & 5. Business name/address missing.

5 Penalties for Violations! $110 - $1,100 per I-9 form (depending on percentage of violations) for substantive or uncorrected technical violations;! Level of penalty is based as follows: 0-9% - $ % - $ % - $ % - $ % - $430 50% or more - $935

6 Mitigating/Aggravating Factors! Mitigating/aggravating factors which cause 5% increase or decrease in penalties:! Size of business;! Good faith/bad faith;! Seriousness of violations;! Employment of unauthorized employees; &! History of prior violations.

7 Why Should Company Perform I-9 Self-Audit?! If ICE serves Notice of Inspection (NOI), it is likely to find substantive errors and assess penalties;! Even for small companies, penalties can be over $50,000;! NOIs can be disruptive to your company;! Attorney s fees usually greater during NOIs than when supervising/conducting self-audits.

8 Using Immigration Attorney During Self-Audit! If employer decides to self-audit without immigration compliance counsel, these issues may arise:! Person who initially filled out Section 2 may be the one performing audit;! Person may not be trained on how to correct errors;! May not be correct person and/or following correct procedure to correct errors.

9 Using Immigration Attorney During Self-Audit (cont d) ICE has described the following problems with self-audits by non-attorneys which create greater problems/fines: Redoing all I-9 Forms and throwing away originals; Separating copies of supporting documentation from I-9 Forms and throwing them away; Making changes to I-9 Forms without initialing and dating the I-9 Forms; and Inserting backdated information in I-9 Forms making them appear to be completed timely.

10 Self-Audits Should Include Drafting of I-9 Compliance Policy When audit of I-9 forms is performed, it should include drafting of I-9 compliance policy which covers: Who is in charge of immigration compliance? Does company retain supporting documentation? Does company use E-Verify? Is company required to use E-Verify by state law or FAR E-Verify? Retention policy - Company must retain I-9 forms of former employees for either: 3 years from date of hire, or 1 year after employee's employment ends, whichever is longer.

11 I-9 Compliance Policy (cont d) Rules for working with outside contractors; Required training for employer reps completing I-9 forms; Zero tolerance policy for employment of individuals who cannot comply with work authorization rules; Timing & procedures for regular internal I-9 audits; Rules on who has access to I-9 records; and Re-verification procedures for employees with Employment Authorization documents.

12 Correcting Errors on I-9 Forms! If errors are found on I-9 forms, they should be corrected;! Be careful to understand how to correct errors:! Section 1 errors by employee;! Sections 2 and 3 errors by employer;! For changes in Section 2 by employer, it should be the individual who originally reviewed documents and signed certification; and If that person is no longer employed, it would be best for employee and employer to fill out new I-9 form.

13 Correcting Errors (cont d)! The best way to correct an I-9 form: " Draw a line through the incorrect information; " Enter the correct information; and " Initial & date the correction in different color pen.! DO NOT backdate I-9 Form;! DO NOT use whiteout ;! DO NOT discard old I-9 Form if used new I-9 Form to correct errors.

14 Correcting Errors (cont d)! If I-9 form is missing data, such as title of document or expiration date of document, add information to existing I-9 form, initial and date addition in different color pen.! If put information in wrong list, i.e., put Social Security in List B or driver s license in List C, draw arrow to correct List, initial and date in different color pen.

15 Correcting Errors (cont d) Do not put information in List B or C if filled out List A and vice versa; This is over-documentation, which could trigger an investigation by the Office of Special Counsel (OSC) for document abuse and OSC could fine the company; If too much information filled out in Lists A, B and C, cross-out the unneeded information, such as List A (because completed Lists B and C), initial and date in different color pen.

16 Correcting Errors (cont d)! To correct multiple errors on I-9 form, you may complete a new I-9 form and attach it to the old form;! New I-9 form can be completed if major errors (i.e., entire sections being left blank or Section 2 being completed based on unacceptable documents) need to be corrected; and! Note should be included concerning reason changes were made to existing I-9 form or completed a new I-9 form.

17 TLEA! Tennessee Lawful Employment Act (TLEA) created non-mandatory E-Verify law, which provides safe harbor incentive for employers to use E-Verify to verify work authorization of new employees but does not require use of E-Verify; and! Tennessee law exempts employers with 5 or fewer employees.

18 E-Verify! Internet-based system run by Department of Homeland Security (DHS) with databases from DHS, Social Security Administration, State Department, and 3 states driver s licenses/ids;! Allows employers to verify employment eligibility of new hires within seconds;! Voluntary, unless required by state or federal law;! Complements I-9 in that employer enters data into system, which obtained from I-9 form; and! Employers must post notices that participate in E- Verify.

19 Why Use E-Verify?! Better system of employment verification than I-9;! E-Verify notice will sharply reduce number of applicants without employment authorization;! Tennessee law requires either use of E-Verify or retention of applicable identity document; and! If you are a federal contractor/subcontractor, you are required to do so under many federal contracts.

20 The Basics! Complete I-9 form and enter data into E-Verify;! If verified, employer will receive a confirmation number & document, which should be attached to I-9 form;! If not verified, employer will receive a Notice of Tentative Non-Confirmation (TNC);! If employee does not contest TNC, employer should immediately discharge employee;! Because if don t terminate employee, face potential fines of $550 to $1,100 per instance of failure to notify DHS that employ unauthorized individual.

21 The Basics (cont.)! If employee contests TNC, employer prohibited from immediately discharging or disciplining employee unless employer obtains other knowledge of unauthorized status; and! If employee contests TNC, employer must refer employee to SSA or DHS and employee must contact SSA or DHS within 8 business days. Employer should contact agency within 8 to 10 business days after referral to receive updated status, authorization, final nonconfirmation or DHS TNC.

22 Basics of TLEA Employers may enroll and use E-Verify for newlyhired employees, or it may accept, copy and maintain one of the following: " State-issued driver s license or photo ID; " Either Tennessee or other state equivalent requirements " Unexpired permanent resident or work authorization card; " Birth certificate; " Certificate of Naturalization; " Unexpired U.S. passport; " U.S. citizen identification card; and a few others.

23 TLEA Covers Non-Employees! If employer contracts with individual/nonemployee, it must request and maintain copy of one of specified documents, such as state-issued driver s license or identification; Non-employee defined as any individual, other than an employee, paid directly by employer in exchange for the individual s services;! Subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

24 Does E-Verify Cause NOI by ICE? E-Verify should not increase company s chances of ICE or OSC investigation unless company is misusing E-Verify: i.e., if company signs up for E-Verify and then does not use it; and Company requesting permanent resident card from all LPRs.

25 Bruce E. Buchanan Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Siskind Susser P.C. He represents employers in immigration matters, with a special emphasis on immigration compliance, and in employment law matters. He received his J.D. from the Vanderbilt University. Bruce served as senior trial specialist for the NLRB for 20 years. He also served from 1991 to 2003 as Adjunct Law Professor at William H. Bowen UALR School of Law. He has been in private practice since B r u c e b l o g s f o r Compliance and LawLogix s I-9 and E-Verify blog, and is a regular contributor to HR Professionals Magazine on immigration compliance issues. He is editor of TBA's Immigration Law Section Newsletter and Labor and Employment Law Section Newsletter. Bruce is admitted to practice in Tennessee, Florida, and Arkansas, and the