Surviving the I-9 Audit Alexandra V. LaCombe

Surviving the I-9 Audit Alexandra V. LaCombe Partner Fragomen, Del Rey, Bernsen & Loewy, LLP

American Society of Employers September 17, 2015 Form I-9 Compliance With you today: Alexandra V. LaCombe Partner and Managing Attorney Fragomen, Del Rey, Bernsen & Loewy PLLC 50 W. Big Beaver Road, Suite 200, Troy, MI 48084 Tel: 248-649-5404 Fax: 248-649-5121 direct dial (248) 282-5706; direct fax (248) 928-0634 Email: alacombe@fragomen.com www.fragomen.com Why Compliance Matters New Immigration & Customs Enforcement (ICE) worksite enforcement strategy announced in April 2009 Resources focused on criminal prosecution of employers who knowingly hire unauthorized workers Dramatically invigorated use of civil enforcement tools including I-9 audits, civil fines, and debarment FY 2004-3 ICE I-9 audits FY 2008 500 ICE I-9 audits FY 2012 3,004 ICE I-9 audits 520 criminal arrests tied to worksite enforcement 376 businesses and individuals debarred from federal contracting for administrative and criminal offenses 2 1

Form I-9 Completion Must be completed for all new hires including temporary or part-time employment Must be completed for all employees working in the U.S., even if on payroll abroad Do not verify (complete form for) employees working outside the U.S. or outside its territories Not required for pre-11/7/86 hires ( grandfathered employees) Not required for independent contractors Must use current edition of Form I-9 as of 5/7/13 3 Form I-9 Completion Physical presence of employee required You must see original documents Attach photocopies of documents - Recommended for most employers but not required No exception for temporary or part-time time employment 4 Discrimination Violations Document Abuse - occurs when certain employees or applicants are subject to more stringent verification measures than necessary to verify that they are eligible to work in the United States Citizenship Status Discrimination - can occur when individuals are not hired or are fired because of their real or perceived immigration or citizenship status, or because of their type of work authorization National Origin Discrimination - occurs when employer treats an employee or applicant differently during the hiring and firing process because of his or her place of birth, country of origin, ancestry, native language, accent or because the individual is perceived as looking or sounding foreign Retaliation - ex.: employee terminated for filing complaint 5 2

Protected Class Includes: U.S. Citizens or Nationals Permanent Residents Refugees Asylees Temporary Residents under the legalization program (Special Agricultural Worker or amnesty applicant) 6 Acceptable Screening Questions Are you authorized to work in the United States? Do you now or will you in the future need an employer to sponsor you for a visa to work in the United States? 7 Form I-9 Completion Section 1 must be completed by employee on, or before, the first day of work once the job offer has been accepted Section 2 must be completed within three business days from the date employment begins Section 3 reverification must be completed on, or before, temporary employment authorization expires 8 3

Form I-9 Section 1 9 Tips for Section 1 Section 1 must be completed by employees on or before first day of hire even if they do not have their documents. Ensure that employee checks box, and signs and dates the form. If employee checks box 3 (box 2 on older forms), A # must be entered. If employee checks box 4 (box 3 on older forms), expiration date and A# or I-94 number must be entered. 10 Most Common Errors on Section 1 Name in wrong order Address incomplete Social Security number field blank Attestation box not checked or wrong box checked Alien number or admission number not provided by employee next to attestation box Signature missing Date missing Date of birth instead of current date 11 4

Form I-9 Section 2 12 Tips for Section 2 Section 2 must be completed by company representative within 3 business days from date of hire Verification of IDENTITY and WORK AUTHORIZATION New hire must be physically present Company representative must review ORIGINAL DOCUMENTS Attach copies of documents presented to the I-9 (recommended). 13 Most Common Errors on Section 2 List A, B, or C document information left blank Date of hire missing Column B and C document information reversed Document number or expiration date missing Employer name or address missing Employer signature missing Employer date missing Information for too many documents recorded 14 5

Receipt Rule Employee must already have work authorization May only accept receipt for replacement document that was lost, stolen, or damaged May not accept receipt for extension of EAD - Except certain OPT extensions Must see original of replacement document within 90 days of hire (docket this date) 15 Requesting Extensions of Stay for NIV Categories The 240-Day Rule Employees in certain NIV categories (i.e., H-1B, E-1, etc) may continue to work during a 240-day "grace period after filing extension of status request (on I-129) Employment authorization ends immediately if USCIS denies the extension of status request Reverification necessary at earlier of: approval of extension request, or end of 240-day period Best practices: Retain with existing Form I-9: A copy of the new Form I-129; Proof of payment for filing a new Form I-129; Evidence that you mailed the new Form I-129; and Receipt of filing of new Form I-129 issued by USCIS Write on the margin of the I-9 next to Section 2 240-Day Ext. and the date the Form I-129 was submitted to USCIS 16 Form I-9 Section 3 Only reverify employment authorization Must reverify on or before date that employee s current authorization expires Section 3 can be used in certain circumstances instead of completing a new form when former employees are rehired 17 6

Reverification Required for all Box 4 people (box 3 on older forms) and certain Box 3 people (box 2 on older forms) Establish tickler system of expiration dates Record expiration date shown in attestation section Send employee memo 120 days in advance Only need to see List A or List C document Record new expiration date in tickler system 90 day receipt rule applies 18 Special Reverification Issues Lawful Permanent Residents - Only reverify if I-551 stamp was presented Other - Always reverify by expiration date in Section 1, box 4 (box 3 on older forms) - Exception: Evidence of asylee status presented 19 Most Common Errors on Section 3 Reverification not completed in a timely manner Document provided was not acceptable or inadequately described Over-documentation (do not reverify identity) Employer signature or date missing 20 7

21 Document Tips Effective 4/3/09 U.S. Passports and List B documents must be valid when presented Foreign passport must be unexpired ID card must be issued by a federal/state/local government agency Voter s registration card need not have photo to confirm identity (but see special rule for E-Verify) Social Security card not acceptable for work authorization if it contains notation Not Valid for Employment or Valid with INS [or DHS] Authorization only Social Security card not acceptable if laminated and reverse side so indicates Birth certificate must be issued by state or local government authority (not hospital issued) 22 Special Document Rules for E-Verify If list B document presented it must have a photo If U.S. passport/passport card, permanent resident card ( green card ) or EAD presented, employer must maintain a copy (photo tool requirement) 23 8

Retention Obligations Employer must have a Form I-9 for every current employee (unless they were hired prior to November 7, 1986). Following employee s termination, employer must retain I-9 for the later of: - 3 years from the date of hire or - 1 year after the date of termination 24 Correcting Forms I-9 Make corrections on original Form I-9 Initial and date all corrections Employees should make corrections to Section 1 - HR can make corrections to A#, Admission # and expiration date in attestation if copies attached Do not back date Do not use correction fluid Cross-outs (but not black-outs) are OK 25 Examples of Substantive Violations Violations will incur fines Missing I-9 Employee name missing Failure of employee to check a box in Section 1 Failure of an employee to sign Section 1 Improper document(s) accepted Section 2 not signed or completed Section 3 not completed or signed if applicable * Violations will incur fines 26 9

Examples of Technical Violations Maiden name, address or date of birth missing No A#, admission number or expiration date in attestation section of box 3 or 4 checked (box 2 or 3 on older forms), if copies of documents attached Section 1 not dated or date of hire in Section 2 missing Not timely completed (subject to good faith test) Document information incomplete (if copies attached) No title, business name or address Employer signature not dated 27 Samples of Corrected I-9s Sample Correction Section 1 29 10

Sample Correction Section 2 30 Correcting I-9s for Terminated Employees A#s and admission #s & expiration dates if copies attached Document information in Section 2 if copies attached Date of hire Company name and address Reverification if copies attached 31 Sample I-9s and Documents 11

Sample I-9 for U.S. Citizen Section 1 33 Sample I-9 for U.S. Citizen Section 2 34 US Passport 1. Passport Number 2. Expiration Date 1 2 35 12

Sample I-9 for a Permanent Resident Section 1 36 Sample I-9 for a Permanent Resident Section 2 (DL & SS) 37 Sample I-9 Permanent Resident Section 2 (I-551) 38 13

Permanent Resident Card 1. Document Number 2. Expiration Date 1 2 39 Sample Section 1 for NIV Status (H, L, O, E) 40 Sample Section 2 for NIV Status (H, L, O, E) 41 14

Form I-94 1. Admission (Departure) Number 2. Expiration Date 1 1 2 2 Acceptable Documents Electronic I-94 42 Form I-94 Unacceptable Document 43 Employment Authorization Card (EAD) 1. Alien Number 2. Document Number 3. Expiration Date 1 2 3 44 15

Anatomy of an Audit Notice of Inspection Time and scope of the audit - Work with agents to make scope manageable - 72 hours response time unless extension granted ICE subpoena Inspection and audit Notice of Intent to Fine/Warning Negotiation civil penalty matrix - 25% upward or downward adjustment - Discretion still exists United States v. Subway Restaurant #3718 45 46 47 16

Current Civil Penalties Violations of I-9 requirements: $110 - $1,100 per I-9 Knowingly hired or continuing to employ: $375 - $3,200 per alien Pattern or practice: $3,300 - $11,000 Debarment from government contracts for knowingly employing an unauthorized worker Criminal penalties: fines and/or imprisonment 48 Knowing Hire/Continuing to Employ Fine Schedule (violations occurring after 3/27/08) % of Violation in Total Workforce First Tier $375-3,200 Second Tier $3,200-$6,500 Up to 9% $375 $3,200 $4,300 10% to 19% $845 $3,750 $6,250 Third Tier $4,300-$16,00 20% to 29% $1,315 $4,300 $8,200 30% to 39% $1,785 $4,850 $10,150 40% to 49% $2,255 $5,400 $12,100 50% and Up $2,725 $5,950 $14,050 49 Substantive/Uncorrected Technical Violations Fine Schedule % of Violation in Total Workforce First Offense Second Offense Subsequent Offense Up to 9% $110 $550 $1,100 10% to 19% $275 $650 $1,100 20% to 29% $440 $750 $1,100 30% to 39% $605 $850 $1,100 40% to 49% $770 $950 $1,100 50% and Up $935 $1,100 $1,100 50 17

Enhancement Matrix Factor Aggravating Mitigating Neutral Business Size + 5% - 5% +/- 0% Good Faith + 5% - 5% +/- 0% Seriousness + 5% - 5% +/- 0% Unauthorized Workers + 5% - 5% +/- 0% History + 5% - 5% +/- 0% Cumulative Adjustment + 25% - 25% +/- 0% 51 Handling Social Security Mismatch SSA resumed sending decentralized correspondence (DECOR) letters in April, 2011 Employers expected to resolve mismatch even with rescission of regulation Inaction is factor to consider whether employer has knowledge of unauthorized worker Catch-22: OSC/NLRB/Courts consistently rule against employers who do take action Best practice: - Notify employees immediately - Require diligent follow-up - Do not take adverse personnel action before final resolution - Do not hold employee liable for government error/inefficiency 52 What is E-Verify Voluntary federal employment eligibility verification system BUT required for: - Federal contractors - State and local requirements - STEM extension of F-1 optional practical training (OPT) Matches name with information in SSA and DHS databases Pros - Reduces chance of SSN no-match - Safe harbor for good faith reliance on result Cons - Additional administrative cost - Error in government databases - Cannot overcome ID fraud 53 18

Employee data from completed I-9 is submitted to E-Verify via website, appropriate questions answered and photo match completed where necessary Information is compared with SSA database through DHS System Work authorization not confirmed (by SSA s database) Authorized Citizens SSA tentative nonconfirmation issued Employer Informs employees of the finding Employee contests Employee does not contest finding; Must visit SSA finding or does not resolve local office issue with SSA local office within 8 days Authorized Final nonconfirmation Noncitizens Information is compared with DHS database Authorized Authorized Final nonconfirmation Social Security Administration Department of Homeland Security USCIS Immigration Status Verifier reviews I-9 information and checks other DHS databases Authorized Employee Employee does not contests finding; contest finding or does not Must call DHS resolve issue with DHS within 8 days Employer informs employee of the finding DHS tentative nonconfirmation issued 57 State (and Local) Enforcement Trends Restrictive immigration enforcement laws as reaction to perceived federal inaction (e.g. AL, AZ, FL, GA) Growing list of states with E-Verify requirements Supreme Court upheld AZ E-Verify law - Chamber of Commerce v. Whiting Concerns to H.R. community: - Federal preemption inconsistent requirements in various jurisdictions - Incompetent enforcement lack of understanding on the part of state or local officials - Unnecessary disruption to business 55 For More Information U.S. Citizenship and Immigration Services http://www.uscis.gov/ U.S. Immigration and Customs Enforcement (ICE) http://www.ice.gov/ Social Security Administration (SSA) http://www.ssa.gov E-Verify http://www.dhs.gov/e-verify I-9 Employer Handbook http://www.uscis.gov/files/form/m-274.pdf 56 Copyright 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 19

Questions? Thank you! 57 20