i-9 employment eligibility verification compliance procedures
TRANSCRIPT
I-9 Employment Eligibility Verification Compliance
Procedures
Presented by:David H. Nachman, Esq.
Nachman, Phulwani, Zimovcak Law Group, P.C.
Immigration Reform and Control Act of 1986 (“IRCA”)
11/6/1986
Requires that all employers complete Employment Eligibility Form (I-9) for newly hired employees.
Designed to control the problem of illegal immigration
IRCA’s ProvisionsNew Employee must provide documents reflecting:
He/She is eligible to workIdentity must match work eligibility documents
Sanctions for paperwork violations and document abuse.
Sanctions for knowingly hiring or retaining unauthorized workers.
Created the OSC to enforce anti-discrimination provision of the INA.
Changes After IRCA 1990 -1996
Immigration Act of 1990 (“IMMACT 90”).
Illegal Immigration Reform And Immigrant Responsibility Act (“IIRAIRA”).
Document Fraud Provisions against Employers.
Bono Amendment and the “Good Faith Defense” for Employers.
Changes After IRCA1997 – Interim Rule Reducing the Number of Documents for I-9 Form:
Certificate of U.S. Citizenship (item #2)Certificate of Naturalization (item #3)Reentry Permit (item #8)Refugee Travel Document (item #9)
2007 – Rebranded and New I-9 Form reflecting the changes from 1997.
Most recent version – 8/7/2009
Recent UpdatesExpired Documents are no longer acceptable for initial verifications.Section 1: Separate boxes for U.S. nationals and U.S. Citizens (4 boxes instead of 3).Old Temporary Resident Cards and Employment Authorization Cards are no longer acceptable.Added Acceptable Documents to List A:
U.S. Passport cardPassport from Federated States of MicronesiaPassport from Republic of the Marshall Islands
More updates coming in the future per CIS…
RECENT UPDATES: The New I-9?
In March 2012, proposed new I-9 form was published for public comment
Comment period extended till October 15, 2012
2 page long New I-9 form, takes 35 minutes to complete as per USCIS
Still uncertain when the new I-9 form will be in effect
Why do we need a new I-9?
Increasing worksite enforcement and fines for minor mistakes
Current I-9 form can be confusing and difficult to complete
Lots of external guidance, which is often inconsistent
Current vs The Proposed
Section 1 Employee Information
Proposed Changes: Changes to Last and First Name FieldsMaiden name has become “Other Names”SSN boxesEmail address and telephone number
Section 1 Attestation
Proposed Changes: “USCIS Number” mentioned in instructionsForeign Passport InformationMore defined signature box
Section 1 Preparer/Translator
Important Noticeable Points: When to complete?How are electronic I-9s impacted?
Section 2 Employer Review
Employee name moved below section 2 instruction
Instructions to prevent over-documentation
List A “third document” fields added
Section 2 Certification
Important Noticeable Points: Attestation is numberedEmployee’s “first day of employment” is more visibleSeparate employer address fields
Section 3 Reverification & Rehires
Important Noticeable Points:No longer for updating?Still no place for issuing authorityNew “Print Name” field
List of Acceptable Documents
Employer SanctionsEmploying Unauthorized Aliens:
$250-$10,000 per alien.Improperly Completed, Retained or Missing Forms:
$100-$1,000 per employee.Knowingly Hiring or Continuing to Employ Unauthorized Alien:
Up to $3,000 per unauthorized alien.Imprisonment (if convicted).
Participating in Document Fraud:1st offense: $250-$2,000.Additional offenses: $2,000-$5,000.
Discrimination:$250-$2,000 - $10,000 per individual.
Requesting Specific Documentation:$100-$1,000 per individual.
Internal Audits
Missing or deficient I-9 Forms discovered during an audit.Missing I-9’s - complete one immediately and attach an explanatory note for your records.Deficient I-9’s - immediately correct and initial/date any changes.Termination of employees who cannot provide valid documents to avoid “knowing hire” or “knowing retention” violations.Exemptions from I-9 requirement.
Recent Enforcement
July 2009 - ICE announced and changed its “Worksite Enforcement” policy.Since that time, there has been an increase in Notices of Inspection (NOIs). In July, 654 NOIs were issued, and an additional 1,000 businesses were served with NOIs in November 2009.in October of 2009, an internal ICE memorandum was released outlining ICE’s worksite policy that reinforced its commitment to levy civil fines against employers, while also “re-focusing efforts to develop criminal cases against employers who hire and use illegal workers.”
New Enforcement Methodology of the ICE Protocols and Procedures
No More Raids: “Today’s enforcement action is part of a multi-phased approach utilized by ICE to ensure that employers are held accountable for maintaining a legal workforce.” – Baltimore Special Agent in
Charge William Winter Employers will likely now see:
Worksite enforcement actions targeting allegedly “egregious bad faith actors”Forensic auditors scrutinizing Form I-9s
Mergers and Acquisitions
If a business is acquired by another, the new employer must obtain the I-9’s of the acquired entity and will be held responsible for any deficient forms.
New I-9 Forms do not have to be completed.
If employer chooses to do I-9’s be sure to use NEW I-9 Form.
Contract EmployeesCompanies are not required to maintain I-9’s for contract employees.
The contractor is responsible for completing Form I-9’s for its own employees.
Employers must not contract labor to avoid directly hiring unauthorized aliens
Knowingly using a contractor that employs unauthorized aliens will result in employer sanctions.
Notice of Inspection (NOI)
The Notice of Inspection arrives in person (along with an administrative subpoena), generally via SpecialAgents from ICE, served on a company representative. Employers are given 3 days to provide I-9s for inspection by ICE.There have been approximately 2,000 audits initiated this year alone.Specific practices vary from office to office, and sometimes even from agent/auditor to agent/auditor.
In November 2009, ICE provided partial statistics on the 654 July NOIs:
ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.To date, 61 Notices of Intent to Fine (NOIFs) have been issued, resulting in $2,310,255 in fines.267 cases are currently being considered for NOIFs.ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.
Investigative Interviews to discuss I-9 Audit with ICE, Forensic Auditor and Employer
The most frequently asked questions include:Who are the owners of the company?Who has the authority to hire and fire employees?Who has the authority to complete the I-9 form?What are the names and titles of all such individuals?What is the hiring process?At what point in the hiring process does HR complete the I-9 form?Has HR had any training to determine if the document is fraudulent?What type of training, if any, does HR receive in regard to completing the I-9?How does the company recruit its workers?Does the company have any independent contractors on staff?Does the company ever use any staffing agencies?Does the company participate in the H-2B or any other non-immigrant visa program?How are the identity and verification documents recorded?How are the identity and verification documents kept?What does the company do with the I-9 form after an employee is terminated?Does the company have a compliance program?Does the company use translators in the I-9 process?Who generally serves as the translator?Does the company use E-Verify? And if not, why not?
Next Steps in the I-9 InvestigationICE notifies the employer of any technical or procedural violations by issuing a “Notice of Technical Violations,” providing a 10-day opportunity for the employer to correct the errors.
In cases that warrant such action, ICE may also issue a “Notice of Suspect Documents” listing certain employees where it is unclear if they are unauthorized to work.
Employers are then provided with time to contact the listed employees and have them provide additional, and alternative, evidence of work eligibility. Without such proof the employer must terminate employment.
How much time provided to employees to review and respond to the Notice varies.
In other cases, ICE can move forward immediately with issuing a Notice of Unauthorized Aliens.
Even with a final notice
such as this, companies should carefully review the listing for errors on the part of the government.
Final Notices from ICE
If a review of the I-9 files reveals that the employer has small violations, but the company is generally in compliance (and ICE expects continued compliance in the future) ICE may simply issue a “Warning Notice” to the employer.If there is a serious I-9 violation, a pattern of noncompliance, or the employer fails to correct its technical violations, ICE can draft a Notice of Intent to Fine (NOIF) to the employer.
The Role E-Verify Plays in an I-9 Audit/Investigation by ICE
ICE has been “encouraging” employers to enroll in E-Verify by using language such as:
“If the company doesn’t agree to use E-Verify, then it will likely be assigned fines during its next I-9 audit,” or“E-Verify will eliminate the possibility of hiring of any criminal aliens.”
E-Verify is clearly a critical best practice and certainly the most advanced tool available to employers today.
USCIS E-Verify Program
“Voluntary” program for US Employers.Partnership between the Department of Homeland Security (DHS) and Social Security Administration (SSA).Provides a means for participating employers to verify the employment eligibility status of newly-hired employees.
What is E-Verify?
The E-Verify system, formerly known as the Basic Pilot/Employment Eligibility Verification Program, is an internet-based system operated by DHS (CIS) in partnership with SSA that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
Federal Contractors and E-Verify:The proposed EFFECTIVE DATE of the FINAL RULE for the E-Verify Registration for Federal Contractors is January 15th, 2009.
Requires that all Federal Contractors, unless exempt, register and use the E-Verify System.
E-Verify use for Federal Contractors has its genesis in Executive Order 13465 promulgated by President Clinton in 1996 (February 1996).
Executive Order 13456 promulgated by President Bush further supported Clinton’s Executive Order.
Enrollment in E-Verify(1) Enroll as a Federal Contractor in the E-Verify program within 30 calendar days of the contract award, if not already in E-Verify; and
(a) Within 90 calendar days of enrollment in the E-Verify program, begin to use E-Verify to initiate verification of employment eligibility of all new hires of the Contractor, who are working in the U.S., whether or not assigned to the contract (and within 3 business days after the date of hire); and
(b) For each employee assigned to the contract, initiate verification within 90 calendar days after the date of enrollment or within 30 calendar days of the employee's assignment to the contract, whichever date is later.
Once in E-Verify:
Federal Contractor at the time of the contract award, shall use E-Verify to initiate verification of employment eligibility of:
ALL NEW EMPLOYEES
EMPLOYEES ASSIGNED TO THE CONTRACT
E-verify and Paper I-9s
E-verify does not replace the need to do a paper I-9. It is simply and electronic way for the employer to verify what is on the form I-9.
The I-9’s still have to be retained.
I-9 Retention
Forms must be retained for:
One year following an employee’s termination.
Three years from the employee’s date of hire.
WHICHEVER IS LATER!
Mitigation Factors
The following are mitigating factors that are taken into account by ICE and other regulatory agencies when determining the fines in connection with I-9 Audits/Investigations:
Size of Business Acting in good faithThat the violations are non-serious. That there is no history of previous violations. That none of the counts involved aliens who are unauthorized to be employed in the United States.
The Good Faith Defense and What Employers Need to Know
Under the Bono Amendment, employers that are found to have committed certain omissions or failures in the I-9 procedures will not be subject to a fine, but will be given notice of the “technical” violations, and will be granted 10 days to cure the deficiencies. Subsequently, in 1997, then-INS General Counsel Paul Virtue issued a memorandum that outlined the agency’s position regarding which violations were “substantive” and which were “technical or procedural
The following year, INS published a proposed regulation which defined “substantive” versus “technical violations,” largely following the Virtue Memorandum
Substantive vs. Technical Violations
It has been determined that verification failures that are NOT “technical or procedural” include the following:
Failure of the person or entity to: Prepare or present the Form I-9; Complete Section One of the Form I-9;Complete Section Two of the Form I-9;Complete Section Three of the Form I-9.
An employer who is provided with at least ten business days to correct technical or procedural failures after notification of such failures and corrects the failures within the designated time period is deemed to have complied with the requirements of section 274A(b) of the Act.
ObservationsRequests for copies of immigration filings are being made to USCIS during the audit/investigation process.
There are disagreements regarding the definition of technical and substantive I-9 violations.
ICE Mutual Agreement Between Government and Employers (IMAGE) program has amended the protocols to include 6 instead of 10.
More training is being offered to companies by IMAGE and ICE agents in general.
There is more cooperation among government agencies, including data sharing agreements.
ICE is developing more detailed training programs for the forensic auditors as well as their Special Agents.
No streamlined guidance regarding audit protocols for Electronic I-9s.
ICE’s IMAGE Program
To enroll in IMAGE, Employers must submit an application to ICE.
The application process includes the following:
Self Assessment.Form I-9 Review by ICE (NOT an audit).SSNVS Review of ALL employees.
Note: ICE’s IMAGE program requires that employers verify ALL employees with E-Verify (Basic Pilot).
IMAGE con’t.10 Steps of IMAGE:
Enroll in E-Verify.Anti-Discrimination Awareness Training.I-9 Training for Hiring Staff.Independent Dual Review of I-9 Forms.Resolution of SSA No Match Letters.Implementation of Internal Tip Line (encourage employees to inform employers of what is going on inside the company).Self-Reporting Procedure to Disclose Any Deficiencies to ICE. Annual Independent I-9 Process Audit.Encourage Contactors and Business Partners to Implement the Same Programs.Annual Report to ICE with results of program participation.
Advice to EmployersAdministrative audits are clearly the tool of choice and employers can expect them to continue to increase in numbers and gain momentum in terms of impact and expense. With a likely push towards an integration of the Form I-9 and E-Verify, along with the increased use of electronic I-9s, additional monitoring of the E-Verify system, and a better-trained and focused core of ICE agents, employers need to consider the importance of proactive compliance planning and training. Although the government’s mechanisms will continue to change, it is expected that the focus on audits will become even more critical over time.
Social Security No Match Issues
No Match Letters are sent to both employers and employees.Letters are generated and send to employers if .5% of the workforce has a SS no match issue.Can result from any number of factors.
New Safe-Harbor Procedures for Employers for No Match Issues
Within 30 days, employer should check records and contact employee to check their records too.Within 90 days the employee must take steps to resolve the issue.Then the employer has 3 final days to complete a new I-9 (with a new SSN) if the issue was not resolved.
Any Questions?
Feel free to contact David H. Nachman, Esq. for more information at: 201-670-0006
Or visit us on the web at:www.visaserve.com