Homeland Security and Immigration Updates: Part I: I 9 Compliance and Best Practices. Anjali V. Shankar

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1 Homeland Security and Immigration Updates: Part I: I 9 Compliance and Best Practices Anjali V. Shankar

2 Agenda Anjali Completing the I 9 Form E Verify, re verification, corrections, and retention Common mistakes and best practices Noreen The audit process Penalties Common mistakes and best practices

3 Section 1 Overview Section 1 calls for the employee s name, address, date of birth, Social Security number and status. The employee must attest to the accuracy of the information under penalty of perjury. Employees must sign and date the form. Employers should use the Preparer/Translator certification if necessary.

4 Section 2 Overview Employees must produce: ONE document from LIST A OR; ONE document from LIST B AND ONE document from LIST C. LIST A documents prove BOTH identity and right to work. LIST B contains identity documents; LIST C contains employment authorization documents. Other components: Employer representative signature, printed name, title, business address, date documents examined, and date of hire (first day of work) in certification.

5 Section 3 Overview Section 3 is used for updating and re verifying forms. If an employee s work authorization will expire, the employer must re verify the employee s work authorization prior to expiration by completing Section 3. Re verification is done by examining new work authorization documents and completing Section 3(c).

6 Section 3 Overview Deadlines for I 9 Completion Section 1 must be completed by the employee when employment begins. Section 2 must be completed by the employer by the end of the third business day. Section 3 must be completed by the expiration date of the foreign national s work authorization.

7 Section 3 Overview Deadlines for I 9 Completion Practice Tip: To comply with the requirement that Section 2 of the I 9 be completed within three days, employers should consider implementing a policy stating that no person may start employment until the entire form is completed. Late completion is likely the biggest error in compliance.

8 Completion Timeline

9 Section 1

10 Section 1 Common Pitfalls Employee fails to complete Section 1 before work commences. Employee leaves some information blank and employer does not catch it in time. Employee erases mistakes or uses white out to cover up mistakes. Don t give the impression you are hiding something. Transparency is key. Employee makes a change or correction but does not initial or date the correction. Employer fails to sign the Preparer/Translator certification after completing Section 1.

11 Section 2

12 Section 2 Common Pitfalls Employer does not complete this section in a timely manner. Employer examines copies of documents instead of originals. Employer requires an employee to present a specific document or combination of documents. Employer requires the employee to present more or different documents than minimally required for employment verification. Employer refuses to accept documents that reasonably appear genuine on their face.

13 Section 3

14 Section 3 Common Pitfalls Employer fails to complete this section to update or re verify information. For example, when an existing employee changes his/her name. Employer waits three days to re verify workers. For re verification, employers do NOT have three days. Employers must complete Section 3(c) before the prior work authorization expires.

15 Section 3 Practice Tips: If an employee changes his/her name, employers should move the employee s file so that the file matches the list the employer will produce if audited. It is not recommended that employers complete Section 3 for re hires because of the difficulty of locating old forms. It is simpler for employers to complete a new form.

16 E Verify E Verify is an internet based partnership between U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration. Congress has made E Verify voluntary, but some states mandate use of E Verify for all employers and other states mandate it for state contractors.

17 E Verify Minnesota only requires employers who perform state contracts for services valued at more than $50,000 to use E Verify. The law requires verification of newly hired employees who will perform under the state contract.

18 E Verify: Pros and Cons Pros: No cost internet based system. Electronically verifies employment eligibility. Helps maintain a legal workforce. Cons: Because of the necessity of repeating the process, there are hidden costs. Does not protect against identity fraud.

19 Re verification Failure to make a timely re verification will likely be construed as knowingly continuing the employment of an alien who lacks authorization to work. Re verify on the basis of the documents presented and not on the basis of status. Re verification is not needed for U.S. passports or Permanent Resident cards. Although these classifications have cards that expire, the right to work under these classifications does not expire.

20 Re verification Practice Tips: Maintain files of employees with work authorization documents that expire. Remind employees that they need to obtain a new document at least 120 days prior to document expiration. Follow up every 30 days with additional reminders.

21 Receipt Rule An employee who cannot present a required document may present a receipt for a replacement document. Receipts authorize work for 90 days from the date of the receipt or expiration of the prior document, whichever is later. DHS takes the position that employees are not permitted to use a receipt for a work permit renewal. After the 90 day grace period, employees are required to present the actual document. Employers should be careful not to commit document abuse discrimination. It is a better practice to allow employees to produce any document from the lists.

22 Correcting Forms Employers cannot fix late completions, untimely reverifications, or status information for terminated employees. If information is missing, obtain it and add it to the form. Late is better than missing or incorrectly completed. Make a clear trail of changes and corrections. Use blue or black ink. NEVER use correction fluid or blacken out information. Draw a line through errors. Use different colored ink for corrections. Date and initial all corrections.

23 Correcting Forms Mark corrected I 9 forms with audit at the top. An audit memo can also be attached which explains the circumstances of the audit. Mistakes and omissions detected on completed forms cannot be retroactively corrected.

24 Correcting Forms Employees must be made aware of Section 1 errors and must correct and initial/date those changes. Employers must correct errors found in Section 2. Employers can make changes and complete missing information about a document s description if a legible copy of the document is attached. Employers can also correct missing dates of hire and missing signatory or company information. Employers CANNOT fill in a missing date of completion. For Section 3, employers should consider using a new I 9 form and attaching it to the original.

25 Photocopy Rule Copying documents the employee presents is permitted but NOT required. If copies are made, they muse be made for all employees. Copies can be used to correct problems identified during periodic self audits or prior to a government audit. It is not recommended to make photocopies get it right the first time instead.

26 Retention of I 9s I 9 forms must be retained for 3 years from the date work commences AND for one year from the date employment terminates. If BOTH tests are not met, forms should not be discarded. Employers must have a form for every current employee hired after November 6, 1986.

27 Retention of I 9s Practice Tips: Keep I 9 forms in files separate from employees personnel files, so that ICE/DOL will not obtain access to information in personnel files in the event of an audit. It is recommended that employers keep current employee forms separate from terminated employee forms. Keeping forms separate makes it easier to find them in the event of an audit.