how your company can survive an i-9 audit

How Your Company Can Survive an I-9 Audit Carl ShustermanJanuary 18, 2012

I-9 Requirements for Employers - Procedure (Part I) Employers are required to Complete Form I-9 for

ALL new hires Day 1 - Employee must complete top portion of form I am a: (1) Citizen or National of the U.S.

(2) Lawful Permanent Resident - A#(3) Alien Authorized to Work Until…

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I-9 Requirements for Employers - Procedure (Part 2) By Day Three, Employers Must Verify the Worker’s

ID and Employment Authorization Worker must present one List A Document (ID and

Employment Authorization) or One List B Document (Establishes Identity)

and One List C Document (Establishes Employment

Authorization)


I-9 Requirement for Employers Procedure (Part 3)

Updating and Re-verification Re-verify Employment Authorization for

Current Employees Re-verify or Update Employment

Authorization for Re-hired Employees Expired Documents


I-9s – Photocopying & Retention

Retention – Paper, Microfilm, Electronic For 3 years after hire, or For 1 year after termination, whichever is later.

Mergers & Acquisitions Copy Employee Documents?


I-9 Inspections

By DHS, OSC and DOL Written Notice of Inspection 72 Hours Notice Potential Civil and Criminal Penalties Advisability of Internal Audits


I-9 Civil Sanctions

Paperwork Violations – Up to $1,100 per employee $1,000,000+ fine for Abercrombie & Fitch in 2010

“Knowing” Violations – 1st Offense: $375 – 3,200 each employee 2nd Offense: $3,200 - 6,500 each employee 3rd Offense: $4,300 – 11,000 each employee

Wal-Mart’s $11,000,000 fine in 2005 allowed company to escape criminal penalties


I-9 Criminal Penalties

“Pattern or Practice” Violations Up to $3,000 per employee Up to 6 months imprisonment Golden State Fence Co., a California employer,

paid $4.7 million to ICE in plea bargain in 2007. U.S. Attorney sought prison terms, but Judge granted the executives probation.


Immigration Anti-Discrimination Laws Discrimination based on

Citizenship Status Discrimination based on

National Origin Fines for Violations

$375 – 16,000 per employee $257,000 Fine for Immigration

Discrimination – California Healthcare Employer in 2010


I-9 Document Abuse

Employer cannot specify which List A, B or C documents that it wishes to see

Fines: $110 - $1,100 per individual Employers should:

Let Employee choose what documents to present Not require extra documents Not reject documents which appear genuine


No-Match Letters

Constructive Knowledge? Give Employee Opportunity to Correct Social Security Number Verification Service

(SSNVS) (800) 772-6270 http://www.socialsecurity.gov/employer/noM

atchNotices.htm (Court Injunction against proposed government regulations)

Law Offices of Carl Shusterman

E-Verify Program A Solution for Employers?

Insulation from Liability? Identity Theft? Is E-Verify Ready for Prime Time?


Remote Hiring

Employer can assign a 3rd party representative or notary public to verify the documents

Employer continues to be liable No verification by e-mail or photocopy.

Original documents need to be verified.


J-1 / F-1 Visa Holders

USCIS does not issue EAD The documents for I-9 purposes include combination

of the following under List A : Unexpired foreign passport number 11-digit Form I-94/I-94A number and expiration date, and:

J-1: Form DS-2019 number and expiration date of employment authorization listed on the form

F-1: Form I-20 with the designated school official’s endorsement for employment on page 3;

Important: Ensure that they enter their admission number from Form I-94/ I-94A in Section 1


F-1 Students Working on OPT

Normally can only work until the expiry date on EAD

Exception- If H-1B petition is filed on their behalf, then can continue to work until October 1.


F-1 on expired OPT with H-1B filed

Documents under List A OPT EAD (Expired) along with Form-I-20 which shows

that the cap-gap extension was endorsed by the student’s designated school official,

Valid till Sept. 30 or until the date the petition is withdrawn or denied.

Important: You must re-verify employment authorization when the Form I-20 cap-gap endorsement expires- no later than October 1.


H-1B Extensions

Employee authorized to work while timely filed extension petition is pending for 240 days, or until the petition is denied.

For I-9 purposes- Write “240-Day Ext.” and record the date you

submitted Form I-129 to USCIS in the margin of Form I-9 next to Section 2.


I-9s for H-1B Extensions, cont.

Retain the following documents: 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 to USCIS. Receipt of the H1- B filing

Re-verify employment authorization in Section 3 once you receive a decision on the H-1B petition


AC-21 Portability

An H-1B employee –can start working for you as soon as you file the Form I-129 petition for Change of Employer

For I-9 purposes: H-1B employee’s Form I-94/I-94A issued for employment

with the previous employer, along with his or her foreign passport

Write “AC-21” and record the date you submitted Form I-129 in the margin of Form I-9 next to Section 2.


How to Minimize Your Liability

Have An Outside Party Audit Your I-9s After the Audit, Correct Flawed I-9s

Do Not Destroy Defective I-9s How to Properly Correct I-9s

Training Sessions for Persons Completing I-9s Consult USCIS Employers Handbook


How to Obtain Additional Information and Stay Updated

Immigration Laws, Regulations & Procedures are constantly changing

USCIS’ new “I-9 Central” website USCIS’ Handbook for Employers (June 2011) Our website –www.shusterman.com Free, monthly e-mail newsletter – Over 60,000

subscribers


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