Disclaimer Disclaimer Immigration law can be complex and it is not - PDF document

7/30/2015 2015 EMPLOYMENT 2015 EMPLOYMENT IMMIGRATION LAW & I IMMIGRATION LAW & I- -9 9 PRIMER: PRIMER: TURNING THE DECEPTIVELY TURNING THE DECEPTIVELY TURNING THE DECEPTIVELY TURNING THE DECEPTIVELY DIFFICULT INTO SIMPLY DIFFICULT INTO SIMPLY UNDERSTANDABLE UNDERSTANDABLE Form I-9 1 Disclaimer Disclaimer  Immigration law can be complex and it is not possible to describe every p y aspect of the process.  This presentation provides basic information to help you become generally familiar with rules and procedures.  For more information on the law and regulations you should consult with an attorney well-versed in immigration AND Form I-9 issues Form I-9 2 1

7/30/2015 Background Background In 1986, in an effort to control illegal immigration Congress passed the immigration, Congress passed the Immigration Reform and Control Act (IRCA) Immigration Reform and Control Act (IRCA). . IRCA forbids employers from knowingly hiring individuals who do not have work authorization in the United States. The net effect is that YOU are the new Border Patrol! The employment eligibility verification provisions of IRCA are found in Section 274A of the Immigration and Nationality Act (INA). Form I-9 3 Background Background Individuals who may legally work in the United Individuals who may legally work in the United States are:  Citizens of the United States  Noncitizen nationals of the United States  Lawful Permanent Residents  Aliens authorized to work Form I-9 4 2

7/30/2015 Background Background To comply with the employment eligibility verification provisions of the INA an employer must:  Verify the identity and employment authorization documents of employees hired after November 6, 1986  Complete and retain a Form I-9 for each employee hired after November 6, 1986  Refrain from discriminating against individuals on Refrain from discriminating against individuals on the basis of actual or perceived national origin, citizenship or immigration status Form I-9 5 Background Background The anti-discrimination provisions of the INA prohibit four types of unlawful conduct: p yp  Citizenship or immigration status discrimination*  National origin discrimination*  Document abuse during Form I-9 process  Retaliation  Retaliation * Actual or perceived Form I-9 6 3

7/30/2015 The Real Issue The Real Issue Form I-9 is an employment verification tool brought about by IRCA . Form I-9 helps verify whether individuals are authorized to work in the United States. Employers who knowingly violate or circumvent the Form I-9 process, or anti-discrimination requirements of the INA may be subject to civil and/or criminal penalties. Form I-9 7 COMPLETING THE COMPLETING THE FORM I FORM I- -9 9 Form I-9 8 4

7/30/2015 Completing The New Form I Completing The New Form I- -9 9 03/18/2013 edition 03/18/2013 edition All U.S. employers must have a form I-9 on file for all current employees. NEW 3/18/2013 VERSION REQUIRED AFTER 05/06/2013 Exception : Employers are not required to have Forms I-9 for employees hired on or before November 6 1986 before November 6, 1986. You may delegate the authority to complete Form I-9 to a responsible agent, however, you will retain liability for any errors. Form I-9 9 Completing The New Form I Completing The New Form I- -9 9 Mergers and Acquisitions Employers who acquire employees from a previous Employers who acquire employees from a previous employer through a merger or acquisition can either:  Treat acquired workers as newly hired employees and complete new Forms I-9  Consider them as continuing in employment and retain the previous Forms I-9 and retain I-9 liability for any previous mistakes Under one or two, all acquired employees should be treated the same to avoid discrimination concerns. What do we recommend? Depends… Form I-9 10 5

7/30/2015 COMPLETING FORM I COMPLETING FORM I- -9 9 SECTION 1: EMPLOYEE INFORMATION SECTION 1: EMPLOYEE INFORMATION & VERIFICATION & VERIFICATION  To be completed by .  Employer verify Section 1 is Form I-9 11 Completing Form Form I- Completing -9 9 Section1: Important Area – Section1: Important Area – Employee Attestation Employee Attestation • The EMPLOYEE MUST select one of the four categories and sign and date Section 1 of Form I-9 • All Employees must complete Section 1 no later than the first business day of employment for pay. • Note expanded questions for Aliens authorized to work! Form I-9 12 6

7/30/2015 Pacific Islanders Pacific Islanders - - “What Box Do I Check?” “What Box Do I Check?”  U.S. Noncitizen Nationals ◦ American Samoa ◦ American Samoa ◦ Swains Island  Citizens of Pacific Island Nations with Special Status ◦ RMI ◦ RP ◦ FSM ◦ CNMI Completing Form I Completing Form I- -9 9 Section 1: Preparer/Translator Certification Section 1: Preparer/Translator Certification • This certification is required when Section 1 is prepared by someone This certification is required when Section 1 is prepared by someone other than the employee (e.g., translator , parent, guardian, etc.). • By signing, the preparer is attesting that Section 1 is true and correct to the best of his or her knowledge. • Note that only the EMPLOYEE can sign the Section 1 Employee Signature Block Form I-9 14 7

7/30/2015 Completing Form I Completing Form I- -9 9 Section 2: Employer Certification of Document Review Section 2: Employer Certification of Document Review • Completed by EMPLOYER. • Must be completed no later than 3 business days after the employee begins work for pay • EMPLOYER MUST examine original • EMPLOYER MUST examine original documents. • Documents MUST be UNEXPIRED. Form I-9 15 Completing Form I- Completing Form I -9 9 Section 2: Lists of Acceptable Documents Section 2: Lists of Acceptable Documents • You must make the Lists of Acceptable Documents available to your EMPLOYEE when he or she is completing the Form I-9. • Make sure you use Form I-9 with (Rev. 03/31/2016) • Note new format in List A, item 5. Form I-9 16 8

7/30/2015 Completing Form I Completing Form I- -9 9 Section 2: Lists of Acceptable Documents Section 2: Lists of Acceptable Documents The EMPLOYEE MUST provide either: • One document from List A OR • One document from List B AND one document from List C Form I-9 17 Completing Form I Completing Form I- -9 9 Section 2: Documents Section 2: Documents – – Genuineness and Genuineness and Photocopies Photocopies • You are not required to be a document expert. Y t i d t b d t t • You MUST accept a document presented by an employee if it reasonably appears to be: • Genuine AND • Relates to the individual presenting it • The document MUST be original* - photocopies are NOT acceptable NOT acceptable. * The only exception is a certified copy of a birth certificate and if you participate in E-Verify, you may only accept List B documents that have a photograph Form I-9 18 9

7/30/2015 COMPLETING FORM I COMPLETING FORM I- -9 9 SECTION 2: SECTION 2:  You may choose to make copies of employee documentation presented to you for Section 2. d t ti t d t f S ti 2 • If you choose to photocopy documents, you must do so for ALL employees, regardless of actual or perceived national origin, immigration or citizenship status, or you may be accused of being in violation of anti-discrimination laws • Copies of electronic images of the presented documents must be retrievable consistent with DHS’s standards on electronic retention, documentation, security and electronic signatures for employers and employees as specified in 8 CFR Part 27 4a.2(b)(3) Form I-9 19 Completing Form I Completing Form I- -9 9 Section 3: Reverification Section 3: Reverification You must reverify an employee on Section 3 or on a new Form I-9 if his y p y or her temporary employment authorization has expired. You MAY also complete Section 3 if you: • Rehire the EMPLOYEE within 3 years of original hire date * • Update the biographic information of an employee * USCIS recommends completing a new Form I-9 for rehires Form I-9 20 10

7/30/2015 COMPLETING FORM I COMPLETING FORM I- -9 9 SECTION 3: REVERIFICATION SECTION 3: REVERIFICATION U.S. Passport or Passport Card  Do not Reverify Permanent Resident Card (Form I-551)    List B documents List B documents _________________________________ Reverify only if employee presents a Permanent Resident  Form I-94 with a temporary I-551 stamp, Reverification or Exceptions  A foreign passport with a temporary I- 1551 stamp (on a machine readable immigrant visa (MRIV) g a t sa ( ) __________________________________ Usually Reverify  When employment authorization document (List A or C) has an expiration date Form I-9 21 FORM I FORM I- -9 9 STORAGE AND STORAGE AND RETENTION RETENTION Form I-9 22 11