March 2007 Employment Eligibility Verification (Form I-9) Compliance.

March 2007

Employment Eligibility Verification (Form I-9)

Compliance

Copyright © 2006 Fragomen, Del Rey, Bernsen & Loewy, LLP 2

Enrique Gonzalez IIIEnrique Gonzalez IIIPartnerPartner

Fragomen, Del Rey, Bernsen & Loewy, LLPOne Alhambra Plaza, Ste. 600

Coral Gables, FL 33134Phone: (305) 774-5800

Fax: (305) [email protected]

www.fragomen.com


ENFORCEMENT IN THE NEWS


Enforcement in the News• August - ICE arrests 41 illegal aliens working at America’s Fair in Hamburg, NY;

51 illegal aliens arrested at Oklahoma saddle factory during search warrant execution

• July - ICE agents arrest 3 illegal alien workers in Gulfport; Employers in Arkansas, Kentucky and Ohio hit with criminal charges in connection with illegal alien employment schemes

• June - ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles International Airport; ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles International Airport

• May - ICE arrests unauthorized workers at L.A. Department of Water and Power; ICE arrests 29 unauthorized workers at construction company that services Camp Pendleton Marine Corps Base

• April - ICE agents arrest seven managers of nationwide pallet company and 1,187 of the firm’s illegal alien employees in 26 states

• March - ICE Worksite Enforcement Operation Nets More Than 50 Illegal Aliens


WORKSITE ENFORCEMENT• Expansion of the current “Basic Pilot” system

nationwide• Verification System interoperable between DHS

and SSA• Must electronically re-check all U.S. workers,

including citizens• Machine-readable, tamper-proof ID containing

biometrics• Documents used to verify employment limited to

tamper-resistant and machine-readable Social Security Card or Employment Authorization Document

• Substantial increase in fines


I-9 UPDATE• On October 30, 2004, the President signed a new

bill into law, amending Section 274A(b) of the Immigration and Nationality Act (INA).

• The law became effective on April 28, 2005 • The new law permits, but does not require,

employers to complete, sign and store I-9s electronically

• The new law allows employers to go “paperless.”


I-9 UPDATE (con’t)

• DHS finally published implementing regulation on June 15, 2006

• New I-9 regulation is technology-neutral • Permits employers to adopt any electronic storage

technology so long as it meets certain minimum standards, including adequate security features that• limit access to authorized personnel• insure data integrity• provide means for producing hard copies• include search and indexing mechanisms


SSA “NO MATCH” LETTERS• ICE published proposed rule on June 14, 2006

• Provided suggested procedures for employers who receive SSA “no match” letter

• Procedures also apply when employers receive notification from DHS that immigration status or EAD reported for employee does not match agency records

• Employers who follow suggested procedures would be provided with “safe harbor” against sanctions

• ICE is accepting comments and final rule may reflect public input


SSA “NO MATCH” LETTERS (con’t)

• Employers who receive “no match” notification are advised to:

1. Check their records for possible clerical errors2. If necessary, request the employee's confirmation of

the employer's records3. If the discrepancy still cannot be resolved, repeat the

Form I-9 employment eligibility verification process.• If properly followed, these procedures could safeguard

the employer from a finding that it knowingly hired or continued to employ an unauthorized worker in violation of the Immigration Reform and Control Act of 1986 (IRCA).


DHS’s NEW IMAGE PROGRAM• DHS announced program in July 2006

– ICE Mutual Agreement between Government and Employers (IMAGE), created by U.S. Immigration and Customs Enforcement (ICE)

– Designed to build cooperative relationships between government and businesses and reduce unauthorized employment

– Participation is voluntary– Companies that comply with program

requirements will be “IMAGE certified”


IMAGE (con’t)

• Employer participants must:– Agree to a Form I-9 audit by ICE– Use USCIS’s Basic Pilot Employment

Verification Program when hiring employees

• Basic Pilot is an internet-based system that provides an automatic link to federal databases to help employers determine eligibility of new hires

• To date, Basic Pilot has experienced substantial delays in providing verification to employers


IMAGE (con’t)• To become IMAGE-certified, employers

must adhere to “best practices” such as:– Creating internal training programs for

completing employment verification forms and detecting fraudulent documents

– Arranging for audits by neutral parties– Establishing protocols for responding to SSA

no-match letters– Establishing a tip line for employees to report

violations– Establishing mechanisms for company to self-

report violations to ICE


IMAGE (con’t)

• Benefits to employers:– ICE will provide training and education to IMAGE

partners on proper hiring procedures, fraudulent document detection and anti-discrimination laws

– ICE will also share data with employers on the latest illegal schemes used to circumvent legal hiring processes

– ICE will review the hiring and employment practices of IMAGE partners and work collaboratively with them to correct isolated, minor compliance issues that are detected

– Participation in IMAGE will help companies reduce unauthorized employment and minimize identity theft


DHS INITIATIVES IN COMBATING FRAUDULENT DOCUMENTS

• Working with DOS to implement Western Hemisphere Travel Initiative– Limiting number and type of documents accepted

• Border Officer Training– Focusing on fraudulent document detection

• Biometrics and International Cooperation– Collecting biometrics via US-VISIT at Ports of Entry– Requiring VWP countries to report all lost and stolen

passports to Interpol and DHS

• ICE Document Fraud Operations – 11 Document & Benefit Fraud Task Forces– Forensic Document Laboratory


FORM I-9 COMPLIANCE


WHO CAN WORK IN THE UNITED STATES?

• U.S. Citizens• Lawful Permanent Residents• Nonimmigrants with work authorization

from the USCIS• Students with work authorization

(typically an “EAD”)• Others (refugees, asylees, TPS) with

work authorization


BASIC I-9 REQUIREMENTS

• Complete I-9 for every new hire since November 6, 1986

• May not hire or continue to employ someone who is not authorized to work in the U.S.


WHO TO I-9

• I-9 employees, not independent contractors

• Do not I-9 employees working outside the United States or its territories

• All employees in the US, even if on payroll abroad

• I-9 temporary and part time employees


CONTRACTORS & TEMPORARY AGENCIES

• No I-9 form is needed for true independent contractors

• If you contract with a temporary agency for personnel, follow the following guidelines:

• Clearly identifying the agency as the “employer”• Indicate the agency will comply with State and Federal requirements

including, but not limited to, proper I-9 completion and maintenance.• Include an indemnification clause

• Entering into a contract with “knowledge” of unlawful status can remove the independent contractor protection.


COMPLETING THE I-9


U.S. Department of Justice OMB No. 1115-0136

Immigration and Naturalization Service Employment Eligibility Verification

Please read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire individuals because of a future expiration date may also constitute illegal discrimination.

Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins

Print Name: Last First Middle Initial Maiden Name

Address (Street Name and Number) Apt. # Date of Birth (month/day/year)

City State Zip Code Social Security #

Employee’s Signature Date (month/day/year)

I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.

I attest, under penalty of perjury, that I am (check one of the following): A citizen or national of the United States A Lawful Permanent Resident (Alien # A_____________________ An alien authorized to work until _____ / _____ / _____ (Alien # or Admission # ___________________________________

Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct.

Preparer’s/Translator’s Signature Print Name

Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)


TIPS FOR SECTION 1

• Section 1 must be completed by employee on or before first day of hire

• Ensure that employee checks box, and signs and dates the form

• If employee checks box 2, A # must be entered

• If employee checks box 3, expiration date and A# or I-94 number must be entered


MOST COMMON ERRORS ON SECTION 1

1. Name in wrong order2. Address incomplete3. Social Security

Number missing 4. Attestation not

checked or incomplete

5. Signature missing6. Date missing7. Date of birth instead

of current date


FORM I-9 SECTION 2Section 2. Employer Review and Verification. To be completed and signed by employer. Examine on document from List A OR examine one document from List B and on from List C as listed on the reverse side of this form and record the title, number and expiration date, if any, of the document(s)

List A OR List B AND List C

Document title: _________________________ ______________________________ ___________________________

Issuing authority: ________________________ ______________________________ ___________________________

Document #: ___________________________ ______________________________ ___________________________

Expiration Date (if any): ___ / ___ / ___ ___ / ___ / ___ ___ / ___ / ___

Document #: ___________________________

Expiration Date (if any): ___ / ___ / ___

CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year) ____ / ____ / ____ and that to the best of my knowledge the employee is eligible to work in the United States. (State employment agencies may omit the date the employee began employment.)

Signature of Employer or Authorized Representative Print Name Title

Business or Organization Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)


REVERSE OF FORM I-9 • The “List of

Acceptable Documents”

• Update on USCIS website www.immigration.gov


TIPS FOR SECTION 2• Section 2 must be completed by

company representative within 3 business days of hire

• Verification of IDENTITY and WORK AUTHORIZATION

• Company representative must review ORIGINAL documents

• Attach copies of documents presented to the I-9



8. Columns A, B, or C left blank with copies attached

9. Document tile missing

10. Document number missing

11. Document expiration date missing


MOST COMMON ERRORS ON SECTION 2 (cont.)

12. Column B and C documents

reversed13. Too many

documents requested14. Date of hire missing15. Employer

certification incomplete (preprint)


FORM I-9 – SECTION 3Section 3. Updating and Reverification. To be completed and signed by employer.

A. New Name (if applicable) B. Date of rehire (month/day/year) (if applicable)

C. If employee’s previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility.

Document Title: _________________________ Document #: __________________ Expiration Date (if any): ____ / ____ / ____

I attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual.

Signature of Employer or Authorized Representative Date (month/day/year)

Form I-9 (Rev. 11-21-91) N


WHO MUST BE REVERIFIED?

Never Reverify US Citizens

Almost Never Reverify LPR

Almost Always Reverify Others


SPECIAL REVERIFICATION ISSUES

• Lawful Permanent Residents – Only reverify if I-551 stamp is presented

• Other – Always reverify by expiration date in

Section 1– Exception: Evidence of asylee status

presented


SAMPLE I-551 CARD (AKA “GREEN CARD”)


SAMPLE I-551 STAMP



• 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


TIPS FOR COMPLETING I-9S ON BEHALF OF TEMPORARY

WORKERS

HOW TO I-9 AN H-1B

Acceptable List A Documents Unexpired Foreign Passport and INS Form I-94 (Form I-94 should have

employer’s name endorsed or Form I-797 with employer’s name should be examined)


HOW TO I-9 AN H-1B•Acceptable List B & C Documents

List B Identity document

and

Restricted U.S. Social Security Card with legend stating “valid for work only with INS authorization” (must also see evidence of work authorization such as I-94. I-94 must have employer’s name endorsed or Form I-797 with employer’s name should be examined)


H-1B PORTABILITY

An H-1B worker may start working for a new company while the H-1B change of employer petition is pending so long as the following criteria is met:

• Foreign national entered legally• Foreign national hasn’t worked without

authorization• Non-frivolous petition is filed before I-94 card

expires

HOW TO I-9 A PORTABLE H-1B

• Acceptable Documents: Same as H-1B visa holder with the exception that employer must also have: Evidence of filing of the change of

employer petition with the CIS and Original employer’s Form I-94

HOW TO I-9 AN L-1

Acceptable List A Documents Unexpired Foreign Passport and INS Form I-94 (Form I-94 should have

employer’s name endorsed or Form I-797 with employer’s name should be examined)


HOW TO I-9 AN L-1•Acceptable List B & C Documents

List B Identity document

and

Restricted U.S. Social Security Card with legend stating “valid for work only with INS authorization” (must also see evidence of work authorization such as I-94. I-94 must have employer’s name endorsed or Form I-797 with employer’s name should be examined)


I-94 REFLECTING ADMISSION TO U.S. AS L-1

L-2 VISA - SPOUSAL WORK AUTHORIZATION

• Status tied to spouse’s L-1 employment authorization

• Employment document is not employer specific

• Must request EAD from CIS

HOW TO I-9 AN L-2 SPOUSE

Acceptable List A Documents Unexpired Employment

Authorization Card


SAMPLE EMPLOYMENT AUTHORIZATION CARD

F-1 VISA – OPTIONAL PRACTICAL TRAINING

• Students can engage in “optional practical training”, pre- or post-graduation, for a total of 12 months; part-time during school year, full-time during vacations

• Not employer specific• Acceptable List A Document

Unexpired Employment Authorization Document (I-688B or I-766)

F-1 VISA – CURRICULAR PRACTICAL TRAINING

• “Curricular” practical training allowed if part of educational program or for off-campus employment based on unforeseen extreme economic hardship

• Acceptable List A Documents Form I-688B or Form I-766

• Acceptable List B & List C Documents List B identity document in conjunction with an endorsed

Form I-20 indicated employment authorization and Form I-94 reflecting that student was admitted to the US in F-1 status for duration of status (D/S)


I-94 EVIDENCING ADMITTANCE OF STUDENT IN F-1FOR DURATION

OF STATUS


I-120 ID


ENDORSEMENT ON BACK OF I-20


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• Must see an original document within 90

days of hire (docket this date)


AUTHORIZING AN AGENT TO COMPLETE AN I-9

• An employer may delegate the authority to complete an I-9

• The employer retains the liability for errors• Select someone responsible• Provide written guidance and contact

information


REHIRING

• No I-9 needed if employee is “continuing to be employed”

• Leave of absence, disability, vacation, etc• Promotion or demotion• Strike, temporarily laid off• Disciplinary suspension• Transfer between one distinct unit of employer

to another

• I-9s may be reused if completed within 3 years of date of rehire (new I-9 recommended)


I-9 PENALTIES--FINES

• Civil Money Penalties: $110 - $1,100 per I-9 for mistakes or omissions

• Penalty: $275 - $11,000 for knowing hire or continuing to employ

• (10% less for errors that occurred before September 29, 1999)


KNOWLEDGE

• Actual knowledge includes knowledge of supervisors at company

• Constructive knowledge includes circumstances where the company “should have known”


I-9 PENALTIES--FINES• Liability for employers’ technical or procedural

paperwork errors limited– If the employer makes a good faith effort to

comply with the I-9 verification requirements, no fines for mere technical or procedural errors • Does not apply if errors not corrected within 10

business days from the date INS notifies of errors• Does not apply if pattern and practice found

– Applies to errors made after September 30, 1996


TIPS FOR CORRECTING I-9s

• All corrections should be initialed and dated with date of correction

• Do not use white-out• Do not obliterate information• Sample


Date corrected

by employee


I-9 PENALTIES--CRIMINAL

• $3,000 per unauthorized alien and up to six months in jail for pattern and practice of employing unauthorized workers

• Five years imprisonment for person who, during any 12-month period, knowingly hires at least 10 individuals with actual knowledge that the individuals are unlawful workers


OTHER PENALTIES

• Criminal liability for document fraud

• Debarment from government contracts for “knowingly” employing an unauthorized worker


DISCRIMINATION ISSUES AND

RECRUITING LANGUAGE


BASIC I-9 DISCRIMINATION VIOLATIONS

• Document Abuse • Citizenship Status Discrimination

(distinguished from National Origin Discrimination)

• Retaliation


DOCUMENT ABUSE

• May not ask for more or different documents

• May not refuse to accept valid documents presented

• Should not specify which documents will be acceptable

• Penalty: $110 - $1,100


CITIZENSHIP STATUS DISCRIMINATION

• May not treat persons in the "PROTECTED CLASS" differently for purposes of hiring or firing.

• Penalty: $2,000, $5,000, $10,000


“PROTECTED CLASS” INCLUDES

• U.S. Citizens or Nationals• Permanent Residents• Refugees• Asylees• Temporary Residents under the

legalization program (Special Agricultural Worker or amnesty applicant)


I-9 "PROTECTED CLASS" DOES NOT INCLUDE:

• Non-Immigrants Such As:- F-1- J-1- H-1

• Asylum Applicants• Illegal Aliens


RECRUITING ISSUES

• How do I identify who needs a visa?

• What questions can I ask?


OFFER GUIDELINES

• Do not discriminate against members of “protected class”

• Do not treat members of “protected class” differently from one another

• Use written questionnaire rather than verbal questions


WHAT TO ASK: SAMPLE FORMAT #1

• Are you legally authorized to work in the United States?

yes ____ no _____• Will you now or in the future require

sponsorship for employment visa status (e.g., H-1B visa status?)

yes ____ no _____


WHAT TO ASK: SAMPLE FORMAT #2

• Are you one of the following: •Citizen or National of the United States, •Lawful Permanent Resident, •Refugee, •Asylee, or •Temporary Resident (does not include

non-immigrant visas such as F-1, J-1, H-1,etc.) yes____ no____


NO DISCRIMINATION IF:

• Request for additional documents not made with the intent to discriminate


NO DISCRIMINATION IF REQUIRED BY:

• Law• Regulation• Executive Order• Government Contract• As Determined By Attorney General


ESTABLISH AN I-9 COMPLIANCE SYSTEM

• Assess I-9 liability • Assess current I-9 procedures• Conduct I-9 training• Correct I-9s• Update I-9 procedures


ISSUES FOR I-9 POLICY

• What questions to ask in recruitment• When to complete I-9• Whether to photocopy documents• How to reverify I-9s• How to store and maintain I-9s• Moving I-9s to separate file upon termination• How to transfer I-9s when employee transfers within

company


THANK YOU