i 9 master 7-09

Wolfsdorf Immigration Law Group

Are You Ready For An I-9 Audit? It’s Time to Get Your I-9’s in

Order!Presentation by

Bernard P. Wolfsdorf and Tien-Li Loke Walsh

Attorneys at Law© 2009 Wolfsdorf Immigration Law Group (all rights reserved)

A program focused on training Human Resource Specialists to ensure compliance with immigration regulations when hiring workers.

ICE Sends Strong Message to Employers

• "Immigration and Customs Enforcement (ICE) agency is about to try a new approach: not just targeting the workers, but also the people who employ them, in the first place. "That's a challenge. There are millions of employers in the United States."

• "We're very cognizant that we just can't focus on the very top, on the biggest employers – that we have to do this at all levels."

• "ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law...This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment."

John Morton, Department of Homeland Security Assistant Secretary for ICE

• July 1, 2009: ICE issues 652 Audit Notices in one day!• More than ICE issued in all of 2008

Enforcement Now Has Teeth!• Interagency cooperation the norm – local, state,

federal agencies, SSA, state wage and labor investigators, postal service investigators, Department of Labor, enforcement agencies

• Criminal prosecutions of company owners, managers, HR personnel with knowledge

• Use of undercover informants • Heavy fines and asset seizures• Use of forensic experts

Worksite Enforcement Statistics

• FY 2004 - 850 worksite arrests• FY 2007 – 4,940 worksite arrests, including

863 arrests based on criminal charges• FY 2008 – 5,713 worksite arrests, including

1,101 arrests based on criminal charges• 700% increase in worksite enforcement cases

compared to FY 2002• 135 were business owners, supervisors, managers,

and HR personnel

Worksite Enforcement Statistics

• FY 2008 – ICE obtained criminal fines, restitutions, and civil judgments in excess of $30 million

• FY 2009 budget: $3 billion for enforcement activities; $100 million for E-Verify

• What to do if ICE or DOL or IRS agents come knocking at your door

• Everybody from reception to senior management must be aware of proper steps and chain of communication

The I-9 Gets a Make-Over

• New Form I-9 – effective April 3, 2009– Only acceptable version has edition date (Rev.

02/02/09)N on bottom right corner of all pages

– This version of the I-9 will not expire until further notice

The I-9 Gets a Make-Over

• What has changed?• all documents presented during the Form I-9

process must be unexpired. Includes– U.S. passport

– All List B documents

• New U.S. passport card added to List A on August 8, 2008

Other Noteworthy Changes to I-9 (December 2007)

• Eliminated documents from List A, including:• Certificate of Naturalization (Form N-550 or

N-570)• Unexpired Reentry Permit (Form I-327)

• M-274 Handbook for Employers– SS number not required for Section 1 unless

enrolled in E-Verify

Who Completes I-9?

• Citizens, nationals and non-citizens. U.S. citizens include persons born in Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands. – Nationals of the United States include persons born in

American Samoa, including Swains Island.

• Exempt groups• “grandfathered” employees hired before November 7, 1986

• Casual domestic workers

Independent Contractors

• Exempt from I-9 requirement• Cannot use independent contractors (IC) to

circumvent immigration laws– Cannot hide behind existence of written contract with

contractor/subcontractor

– Liability if employer has constructive knowledge (CK) • ICE takes broad view of CK where employer is under

obligation to make further inquiries of the contractor

Common Issues in I-9 Compliance

• I-9 should only be completed for people an employer actually hires– No prescreening

Three Sections of I-9:Timing Issues

Section 1: Employee Information and Verification – Complete on first day

Section 2: Employer Review and Verification

Complete Section 2 within 3 business days

Section 3: Updating and Reverification

1

2

3

Section 1 Common MistakesEmployee Information and Verification

Employee did not:» Sign or date the form» Complete Section 1 on date of hire» Check one of the four boxes regarding status or checked the wrong

box

Section 1 Common Mistakes (continued)

Employee did not:- List an A #: ________________This is the number on the Alien

Registration Card or EAD Card- Complete expiration date - Employee authorized to work until

____/____/_____ expiration date of work permission, plus the A number on either the EAD Card or the I-94 Card.

Make sure the employee signs and dates the Form I-9. If not signed, employer assumes liability for false statements in Section 1.

Section 2 Common MistakesEmployer Review and Verification

Employer did not: - sign or date Section 2- fill in date of hire- did not complete Section 2 within

3 business days of hire

Section 2: Common Mistakes

One from List A

- or -One from List B

+ One from List C


Employer:- did not complete information about document title, issuing authority, document number and expiration date- photocopied the documents but did not complete the form


Employer accepted:- unacceptable documents (hospital birth certificate, foreign birth certificate, restricted SS card, expired document) - documents that have been removed from current list (Naturalization Certificate)

Section 2 Common Mistakes

Employer:

- accepted documents that did not “reasonably relate to the

employee (different names, different date of birth)

- reviewed too many documents –discrimination


Employer:

- keeps copies of documents for some employees, but not all

- employer representative who signed the form was not the

same person who saw the original documents


• Employer did not re-verify when required• Employer did not complete the information required in

Section 3• Employer did not sign Section 3

How to Complete an I-9 for…Alien with Nonimmigrant Visa

• e.g. E-1, E-2, E-3, H-1B, L-1, O-1, O-2, P-1, P-1S, P-2, P-3, R-1

• Complete Section 2, List A block

I-94 card

USCIS/DHS

123456789

DATEPassport # (Country)

DATE

Examples of I-94 card

How to Complete an I-9 for… Individuals with EAD

• Complete Section 2, List A block

EAD

DHS/USCIS

WAC123456789DATE

Sample EAD

How to Complete an I-9 for…F-1 Students with CPT

• Complete Section 2, List A block with:•Form I-20 (all pages) with CPT notation•I-94 card•Unexpired foreign passport

F-1 Students with CPT

AND

CPT Annotation

AND

SEVIS number

How to Complete an I-9 for…J-1 Intern/Trainee

• Complete Section 2, List A block with:– DS-2019

– I-94 card

– Unexpired foreign passport

– Letter from responsible officer (if academic training)

How to Complete an I-9 for…J-1 Intern/Trainee

AND ANDLetter from DSO approving employment (if academic training)

Common Issues in I-9 Compliance

• Document Abuse– Can’t request documents before hire or during

interview

– Can’t specify which documents to accept – provide List and let employee choose which documents to present

– Can’t require more documents than required on the List

– Can’t refuse to honor acceptable documents

– Can’t ask to see document listed from Section 1 attestation

Common Issues in I-9 Compliance (continued)

• Original versus photocopies of documents– Must personally examine the document– Photocopies not acceptable

• Exception: certified copy of birth certificate


• How does an employer know if a document is real?– reasonable test – acceptable if it reasonably

appears on its face to be genuine and relates to the individual presenting it

– Signs of fraud – e.g. if SS number has more than 9 digits or SS number that begins with 000, 800 or 900 (unused)

Should Employer Copy Supporting Documents?

• Past practice – if you copy – reveals mistakes in process– Current practice: keep copies

• Critical to efficient review and correction of I-9s during internal audit

• Useful defense in government audit or investigation against a claim that documents never presented

• Evidence to show good faith – copy shows that document on its face, reasonably appeared genuine

To Copy or Not to Copy?

• E-Verify Employers must photocopy if document used as part of the Photo Screening Tool (permanent resident (I-551) and Employment Authorization Document (I-766)

• If not E-Verify employer, no requirement to copy

• Don’t copy more documents than required


• What if employee is unable to provide the required documents within 3 business days?– Can accept receipt in some circumstances

• What is “Receipt rule?”– 3 situations qualify

Receipt Rule

• Receipt for a replacement document when the document has been lost, stolen, or damaged– valid for 90 days

• must present the replacement document to complete the Form I-9 within 90 days

– Receipts for new document replacing expired document not allowed

• Receipts for renewals of EADs are not acceptable for verification and reverification purposes

Receipt Rule

Receipt (Passport)

Dept. of State

123456789

N/A

• When you receive actual document, line out “receipt,” put expiration date, date and initial

Receipt Rule

• Form I-94; temporary I-551 stamp and a photograph of the individual - considered a receipt for the Form I-551, Permanent Resident Card. – If I-551 stamp has no expiration date - must present I-

551 within one year from the date of issuance

• Form I-94 containing an unexpired refugee admission stamp– must present acceptable documentation to complete the

Form I-9 within 90 days of hire date or expiration date of employment authorization


• Other situations where receipt is acceptable– AC-21 H-1B portability

– H-1B Cap-gap for F-1 students on OPT

– F-1 STEM graduates with extended 17-month OPT

– Nonimmigrant visa extensions – e.g. E-1, E-2, H-1B, L-1, O-1, P-1, etc.

• Timely filing of extension with USCIS automatically grants 240 days of continued employment authorization

AC-21 H-1B Portability

• Complete Section 2, List A block with:

– USCIS Receipt Notice or Courier Notice

– I-94 card showing H-1B status with original employer


AC-21 H-1B Portability

• Attach the following documents to I-9:– Copy of USCIS receipt. If you use courier

receipt as evidence of filing, replace it with a copy of the USCIS filing receipt once received;

– Copy of the alien employee’s I-94 card (demonstrating lawful admission into the United States and H-1B status).


• Once approved, update the I-9 (by inserting the expiration date, initial and date it) or complete a new I-9 with the new H-1B expiration date from the I-797 Approval Notice

H-1B Cap-Gap for F-1 Students

• Complete Section 2, List A block with:– Expired EAD (I-766)– New Form I-20 (all pages) (showing extended employment authorization

dates)– USCIS Receipt Notice (I-797) showing receipt of H-1B petition or USCIS

Approval Notice• Once H-1B approved, update or complete new I-9

F-1 STEM students with additional 17 month OPT

• Complete Section 2, List A block with:– Expired EAD card (I-766)– New Form I-20 (all pages) (updated to show school recommended

STEM authorization, beginning on date after the expiration of EAD)

– USCIS receipt showing timely filing of I-765 extension– Receipt valid for 180 days

• Once approved – update I-9 with EAD

NIV Extensions

• 8 C.F.R. §274a.12(b)(20) automatically extends employment authorization for 240 days if timely filed extension

• Complete Section 3 of I-9 with USCIS Receipt Notice

NIV Extensions

• Doc. Title: Form I-797 Receipt• Document #: USCIS Receipt Number• Expiration date: calculate the date that is 240 days (8 months) beyond

the current expiration date and notate 8 C.F.R. §274a.12(b)(20) • Once approved, update Section 3 with the new expiration date (line

out, initial and date) or complete a new I-9.


• Can employer terminate an employee for failure to produce documents within 3 business days?

Reverification

• Must reverify on or before employment authorization expires

• Employee must choose from List of Acceptable documents

• Employer has option to complete new I-9 instead of completing Section 3

• If used I-9 dated before 02/02/09, must use new I-9 to reverify

• Write employee’s name in Section 1, complete Section 3, attach to old I-9

Reverification: Common Mistakes

• Do not reverify U.S. citizens/green card holders or “continuing employees”

Reverification: Common Mistakes

• Exception: Temporary I-551 stamps must be reverified

** * *

Reverification: Unresolved Issues

Conditional Permanent Residents or CPRs with2-year green cards

Organization of I-9s

• Never keep I-9s with personnel files

• Organize in 3 categories– I-9s for current employees– I-9s for employees with expiration dates that

require reverification– I-9s for terminated employees that may require

purging/destruction at the appropriate time

Organization of I-9s

• Electronic Retention

• Guidelines in M-274 on pages 15-17

• What to avoid and what to look for in I-9 software

Retention Rules• Must retain until the later of

– three years after the date of hire, OR

– one year after the date of termination

Example #1 Example #2

Hired: 3/1/2000 Hired: 3/1/2000

Left: 5/1/2001 Left:8/5/2003

3 yrs after hire = 3/1/2003 3/1/2003

1 yr after term = 5/1/2002 8/5/2004

Retain until: 3/1/2003 Retain until: 8/5/2004


• Mergers, Acquisitions and Restructuring– No requirement to complete I-9s, but assume

liability if defective– Importance of internal self-audits

• I-9s

• Immigration files

• Contractors/Subcontractors


• Correcting mistakes and omissions on I-9s– Never too late to complete I-9s– How to correct mistakes and omissions– Never delete, white-out, black-out– Never backdate

What is wrongwith thisI-9?


• Is a Social Security number required to hire an individual?– NO!!!– How to generate paycheck without a social

security number

Strategies for Compliance (Minimizing Liability)

• Have a written corporate immigration compliance policy

• Corporate compliance policy must include clear statement:– non-discrimination practices– prohibiting the hire of undocumented workers –

zero tolerance policy– appropriate use of independent contractors

Compliance Policy (continued)

• Best Practices for I-9 Compliance– Centralize authority – assign to responsible party

– Tickler system to ensure• timely reverification of expirations

• timely purging/destruction

– Centralize storage

– Conduct regular internal audits

– Conduct regular training for anyone involved in I-9 compliance

Compliance Policy (continued)

• Discovery of I-9 fraud or identity theft

• Mergers, acquisitions and restructuring

• Social Security mismatch letters

Constructive Knowledge

• Definition:– The term “knowing” includes not only actual

knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition

– Depends on totality of circumstances

Constructive Knowledge?

• Failure to take reasonable steps to address the following situations:– An employee’s request for the employer’s sponsorship

for a labor certification (green card) or visa petition (nonimmigrant visa)

– Receipt of a no-match letter from the Social Security Administration

– Recent cases have broadened interpretation of CK• CK arising from “reckless and wanton disregard” – interpreted

to include employers who recklessly entrust incompetent employees with hiring or I-9 compliance responsibility. e.g. failure to reverify an I-9

“Good-Faith” Defense

• Also known as the Sonny Bono amendment

• Good-faith compliance is a defense with respect to a “knowingly hiring an unauthorized alien” charge

• Only applies to failures occurring on or after September 30, 1996

Civil Penalties

• Knowingly hiring or continuing to employ unauthorized aliens

• First offense: not less than $375 and not more than $3,200 for each unauthorized alien

• Second offense: not less than $3,200 and not more than $6,500 for each unauthorized alien; or

• Subsequent offenses: not less than $4,300 and not more than $16,000 for each unauthorized alien

Civil Penalties

• Failing to comply with Form I-9 requirements– Paperwork violations

• e.g. failure to complete, retain and/or make available for inspection

• Penalty: Not less than $110 and not more than $1,100 for each violation– DHS considers the following in assessing the amount of penalty:

• Size of business• Good faith of employer• Seriousness of violation• Whether or not the individual was an unauthorized alien; and• History of previous violations of the employer

Increased Penalties

• Apply to any violations occurring on or after March 28, 2008

• Increased by approximately 25% ($100 to $1,000)

• Penalties assessed on a per-alien basis

Criminal Penalties

• Engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized aliens– Fines of up to $3,000 per employee and/or 6 months

imprisonment

• Engaging in fraud or false statements or otherwise misusing visas, immigration permits and identity documents– Fines and/or imprisonment for up to 5 years

Related Offenses

• Unlawful discrimination (OSC)• e.g. document abuse

• asking for more documents than required by I-9

• asking for particular documents such as a “green card”

• rejecting documents that appear to be reasonably genuine

• Treating employees who “look or sound foreign” differently

• Document Fraud

• Conspiracy to transport and harbor unlawful aliens

• Money laundering

Government Programs

• Social Security Number Verification System (SSNVS)– Call-in number 1-800-772-6270– Online system verifies up to 10 names/SSNs for

immediate results• http://www.ssa.gov/employer/ssnv.htm

– Overnight system – uploads a file with up to 250,000 names/SSNs for next business day results

Government Programs

• IMAGE (ICE Mutual Agreement Between Government and Employers)

• Employers must:– submit to I-9 audit by ICE– Use the SSNVS to verify the SSNs of existing

workforce– Commit to “Best Hiring Practices”– ICE provides training, education to IMAGE partners on

proper hiring procedures, fraudulent document detection, and antidiscrimination laws

E-Verify Program

• Program Summary– Automated link to federal databases –

DHS/SSA– Employers register online at www.uscis.gov– Memorandum of Understanding (MOU) is

signed by employer, DHS and SSA– Staff members using E-Verify must complete

tutorial online

http://www.uscis.gov/

E-Verify Program– Electronic query submitted once I-9 is completed

• No prescreening• Only for new hires and existing employees classified as

“employees assigned to the contract.”• Some exceptions: institutes of higher learning, state and local

governments, governments of federally recognized Indian tribes, sureties performing under a takeover agreement with a federal agency

– Can choose to only use E-Verify on » new employees assigned to the contract » existing employees assigned to the contract

– Automated response regarding employment eligibility– Follow-up required for “tentative non-confirmations”

E-Verify Program

• Mandatory for all employers in Arizona, Mississippi and South Carolina

• Other states with some sort of E-Verify requirement (mostly state/public agencies):– Colorado, Georgia, Minnesota, Missouri, North

Carolina, Oklahoma, Rhode Island, Tennessee, Utah

• September 8, 2009: all federal contractors and subcontractors must use E-Verify

Participation in E-Verify: Pros and ConsIs it Right for You?

• Participation serves as a valid argument for good faith compliance for Management and HR in the event of an audit, raid or enforcement action by government

• E-Verify is the future– almost all immigration related legislation

pending before Congress includes some form of E-Verify participation requirement

Participation in E-Verify: Pros and ConsIs it Right for You?

• Increases exposure to government audits – DHS is data-mining – Participation does not guarantee against government enforcement

actions• MOU gives ICE broad access to company records, including

employment records, right to interview employees, periodic on-site visits

• Controversy over accuracy of databases• Concern over lack of available resources and funding of the program• Increased risk of wrongful termination• Administrative burden – non-confirmation resolution is time-

consuming and disruptive• Decentralized hiring or remote hiring sites present challenges• State variances confusing – some states require mandatory

participation; some prohibited from participating

Open Forum:

Question and Answer Session

i 9 master 7-09

Education