September 11, 2017 Purpose of the Form I-9 Introduction to the Form - - PowerPoint PPT Presentation

September 11, 2017

• Purpose of the Form I-9
• Introduction to the Form I-9
• Revisions and Updates – New

Updates (July 2017)

• Form I-9, Section 1
• Form I-9, Section 2
• Form I-9, Section 3
• Remote Hires
• I-9 Exceptions and Special Situations

• Avoiding Common Errors
• Tips for an I-9 Audit
• Common I-9 Errors - Samples
• Potential Fines for I-9 Violations
• Correcting Form I-9
• General Tips for Completing Form I-9
• Retaining Form I-9
• Employee Rights
• Document Abuse
• E-Verify

• Form I-9, Employment Eligibility

Verification

• The purpose of the Form I-9 is to verify:

▫ Identity ▫ Authorization to work in the United States

• All new employees must complete a Form I-9
• All U.S. employers MUST have a Form I-9 on file

for all current employees

• Exception: Employees hired on or before

November 6, 1986

• May delegate authority to complete the I-9 to a

responsible agent, however, you will retain liability for any errors.

• Federal law provides for civil and criminal

penalties for failure to comply with Form I-9 requirements

• Multi-page form includes:

▫ Instructions ▫ Form I-9 (became 2 pages in 2013) ▫ List of Acceptable Documents

• Give the employee all pages, including

instructions.

• Who needs to complete an I-9?

▫ Any person hired to perform labor or services ▫ All employees hired after November 6, 1986

• Who does NOT need an I-9:

▫ Independent Contractors for whom you do not set

work hours, or provide tools to do the job. ▫ Not physically working in the United States

• U.S. includes: 50 states, District of Columbia,

Guam, Puerto Rico, U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands

• Only employees in Puerto Rico can complete and

retain the Spanish version. Others can only use it for translation purposes. ▫ Hired on or before November 6, 1986

• Requirements when hiring a new employee

▫ Section 1 (Employee) ▪ Upon date of hire, no later than Day One ▫ Section 2 (Employer) ▪ No later than Day Three

▪ Valid proof of identity and work eligibility

▫ Section 3 (Update) ▪ Complete on original I-9 ▪ Copy of valid documents

• Requirements for re-verification/renewal of

work authorization:

▫ Either complete Section 3 on the existing I-9 form or you can complete a new I-9 ▫ Section 1 ▪ Record employee’s name and social security # ▫ Section 3 ▪ Before previous authorization expires ▫ Keep a copy of the work authorization document

• Original I-9 and copies of supporting

documents should be kept separately from the employees’ personnel files.

Mergers and Acquisitions Employers who acquire employees from a previous employer through a merger or acquisition can either: 1) Treat acquired workers as newly hired employees and complete new Forms I-9. 2) Consider them as continuing in employment and retain the previous Forms I-9 and retain Form I-9 liability for any previous mistakes. Under one or two, all acquired employees should be treated the same to avoid discrimination concerns.

 March 8, 2013 – U.S. Citizenship and Immigration

Services (USCIS) issued a revised Form 1-9. Became a 2-page form. This form could only be used through January 21, 2017.

 November 14, 2016 - New “smart” Form I-9 with a

revision date of November 14, 2016. This new form had to be used after January 21, 2017.

 July 17, 2017 – Trump Administration released yet

another new version of the I-9 Form that must be used starting September 18, 2017.

 Employers who fail to use the new Form I-9

may be subject to penalties enforced by ICE.

 The federal Government has also confirmed the

hiring of 10,000 new ICE agents to focus on civil and criminal investigations.

 Could triple the number of I-9 workplace audits

 What are the changes?

• Nothing substantive was changed
• 1. Revisions to the Instructions
• a. Name of the Office of Special Counsel for Immigration-Related

Unfair Employment Practices changed to its new name, Immigrant and Employee Rights Section.

• b. Removed “the end of” from the phrase “the first day of

employment.”

• 2. Revisions to the List of Acceptable Documents
• a. Added the Consular Report of Birth Abroad as a List C document
• b. Combined all certifications of report of birth issued by the Dept of

State into selection C#2 in List C

• c. Renumbered all List C documents except SS card

 Employers do not need to complete a new

Form I-9 for current employees who have properly completed the Form I-9 and have it on file.

 Not permissible

 Employers must use the new Form I-9 for any

reverification of employment authorization after September 17, 2017.

 New interactive forms still contains all of the

“smart I-9” features unveiled in January 2017

 Can complete the editable pdf form on

computer, but must print out and obtain handwritten signatures

 What was new on the January 2017 I-9?

› A “smart” I-9 because it contains pop-up informational icons and error-checking capabilities. › Most fields have a “?” icon, when clicked, will provide summary instructions. › Precludes completion of the form if a mandatory field is left

• blank. Missing information will be highlighted and form

cannot be saved until all required fields have been completed. › If no preparer or translator assists in completion, employee must indicate by checking box labeled, “I did not use a preparer or translator.”

› Section 2 has a new dedicated area to enter additional info.

for unique work authorization scenarios such as TPS extensions, OPT STEM extensions, H-1B, etc. › Section 3 (reverification) - the Employer must now complete the Last Name, First Name and Middle Initial fields. › Also in Section 3, instructions now state that if employee being reverified or rehired has also changed his or her name since original I-9, the Employer is only to enter the part of the name that has changed.

› A new “Citizenship/Immigration Status” field at the top of page 2 for Employer to select from a pull-down list or write the number corresponding with the status selected by Employee. › Section 1 modified so that “aliens authorized to work” (box 4) enter either (i) their A#, (ii) I-94 Admission # or (iii) Foreign Passport No. and Country

• f Issuance.

› As of January 2017, the new instructions have been separated from the form and expanded from 9 to 15 pages. ›All of the signature “date” fields (Sections 1, 2 and 3) have been changed to “Today’s Date” since Employees and Employers should never backdate the I-9.

 Lists of Acceptable Documents

Use MOST CURRENT Form I-9 VERSION, 07/17/17

 You must make the Lists of Acceptable

Documents available to your EMPLOYEE when he or she is completing the Form I-9

The Employee MUST provide:

 One document from List A

OR

 One document from List B AND one document

from List C

 To be completed by EMPLOYEE.  Employer MUST verify Section 1 is

COMPLETE.

Section 1 of Form I-9. All employees must complete Section 1 no later than the first business day

• f employment for pay.

• This certification is required when Section 1 is prepared by someone other

than the Employee.

›Employees must check the first box if they don’t use a preparer

• r translator.

∙If the first box is checked, no entries can be made in the fields as the

check box is equivalent to stating N/A. ›If the employee uses a P/T, the P/T must check the second box in this section, then choose from the drop-down menu the number of preparers and translators used.

∙If the dropdown indicates more than one P/T, the form automatically generates an extra page to enter up to four more P/Ts ∙P/Ts must sign and date the areas by hand.

∙If the form is being completed on paper, P/Ts may use the supplement on

the Form I-9 download page to enter multiple P/Ts.

• To be signed by the employee no later than the first

day of employment

• The employee has 3 business days to provide

supporting documents ▫ Provide instructions pages and List of Acceptable Documents ▫ Do not request specific documents

• If hired for fewer than 3 business days, first day of

work for pay

 Reminders on Section 1 completion:  To be completed by the EMPLOYEE  Employer must verify Section 1 is COMPLETE  Employee must select one of the 4 categories under “Employee

Attestation”

 Citizen, Noncitizen national, Lawful permanent resident or an

Alien authorized to work in the U.S.

 Employee must sign and date Section 1  All employees must complete Section 1 no later than the first

business day of employment for pay

 Section 1 Reminders:

 Employee may complete Section 1 prior to the first

day of work for pay only if the offer has been accepted.

 Address must be a street address, not a P.O. Box  SS # is only required if Employer uses E-verify  All names used by employee must be indicated

 Without obscuring the other information on the I-9  Can write other names elsewhere on the form or attach

a Memo

• Is Section 1 complete?

▫ Legal Name ▫ Address and Date of Birth ▫ Signature ▫ Citizenship status ▫ Date (date employee completes Section 1)

Completing Section 2 ∙Completed by EMPLOYER. ∙MUST be completed no later than 3 business days after the employee begins work for pay. ∙EMPLOYER MUST examine

• riginal documents.

∙Documents MUST be UNEXPIRED.

• Section 2 must be completed no later than

the third day of employment Ex: If employee starts work on Monday, Section 2 must be completed no later than Wednesday.

• What document does the employee need?

▫ List A – establishes both identity and

authorization to work in the U.S. ▫ List B – establishes identity ▫ List C – establishes eligibility to work

• One document from List A; or
• One from List B and one from List C

Example of a valid List A Document:

• Can I accept this document?

▫ Original – no faxes or photocopies ▫ Signed ▫ Unexpired ▫ Appears valid

Examining Documents Genuineness and Photocopies ►You are not required to be a document expert ►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* *Exception: Certified copy of a birth certificate

• Record the Documents

▫ Use the correct columns

• Do not record the List B document in the List C column

▫ Use the correct lines in each column

• Document Title
• Issuing Authority
• Document #
• Expiration Date

▫ Make a copy of each (if it is company procedure)

• Attach copies to the I-9
• Do not copy any additional documents

• Future Expiration Dates

▫ Does not preclude continuous employment authorization; ▫ Does not mean that subsequent employment authorization will not be granted; and ▫ Should not be considered in determining whether the individual is qualified for a particular position.

• Complete the Certification

▫ Date employment began ▫ Signature (original), Name, Title ▫ Employer’s name and address ▫ Date

 Section 2 – Employer Review and Verification

 You may delegate the authority to complete the I-9

to an agent

 HOWEVER, Employer will retain liability for any

errors completed by the agent

 Section 2: Receipt Rule



A receipt showing that your employee has applied to replace a document that was lost, stolen or damaged.



Employee must present a replacement document within 90 days of the hire date.



The arrival portion of Form I-94/I-94A with a temporary I-551 stamp and a photograph

• f the individual.



Receipt is valid until the expiration date on the stamp, or one year after the issuance date if the stamp does not contain an expiration date.



Employee must show you their Permanent Resident Card (I-551) upon Expiration.



The departure portion of the Form I-94/I-94A with a refugee admission stamp or computer-generated printout of From I-94 with admission code “RE”.



Employee must present an EAD or List B document and unrestricted Social Security Card within 90 days of the hire date.



The receipt must be issued by the originating agency.



Receipts are never acceptable if employment will last less than 3 business days.

 Section 2 Reminders– Documents (Genuineness

and Photocopies)

 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

 The only exception is a certified copy of a birth

certificate

 Section 2 – Employer Certification Reminders

 Employer certifies it has reviewed verification

documents

 Completed by EMPLOYER  Person who reviews documents MUST be person who

signs in Section 2

 MUST be completed no later than 3 business days after

the employee begins work for pay

 Employer MUST examine original documents  Documents must be UNEXPIRED

 Section 2 Reminders– Copying Verification

Documents

 You may choose to make copies of employee

documentation presented to you for Section 2

 If you choose to copy documents, you must do so for

ALL employees, regardless of actual or perceived national origin, immigration or citizenship status, or you may be in violation of anti-discrimination laws.

Before

• Sept. 18

On or After

• Sept. 18

Previous version of the Form I-9 OR Revised Form I-9 Revised Form I-9 must be completed ›You MUST reverify an employee using Section 3 if his or her temporary employment authorization has expired. ›You MAY also complete Section 3 if you: ∙Rehire the EMPLOYEE within 3 years of the date of initial execution of the Form I-9* ∙Update the biographic information of an employee * USCIS recommends completing a new Form I-9 for rehires

• When is Section 3 used?

▫ Extension of work authorization

▫ An employee is rehired within 3 years of date of original I-9

▫ Biographic information has changed

(optional)

• Make a copy of the supporting document

(if this is the policy of the Employer)

• U.S. Citizens and noncitizens nationals

never need reverification.

• Do not reverify the following documents:

▫ An expired U.S. Passport or Passport Card; ▫ A Lawful Permanent Resident Card (“green card”); ▫ A List B document that has expired.

• Do reverify:

 When an employment authorization document (List A

• r C) has an expiration date.

 Does not include a U.S. Passport or Lawful Permanent

Resident card under List A.

• Rehires

▫ If rehired within 3 years, either:

• complete new I-9 or
• complete Section 3 of previously

completed I-9 *Keep in mind that USCIS recommends completing a new I-9 for rehires

• Employee working at remote location or
• ff-site

▫ 2 options to complete Section 2:

• 1. If through temp agency, agency

completes I-9 on behalf of Employer.

• 2. Authorize a qualified agent
• a. Agent Authorization Form
• b. Remote Hire Notary Notice Form

• Social Security Number applied for

▫ Complete the I-9 form within the required timeframe ▫ Copy the official Receipt Letter (proof that SSN has been requested) ▫ Use the SSN on the letter to complete the I-9

• When SS card is received, make a copy and

keep with I-9

• Social Security Number delayed

▫ Complete the I-9 on time ▫ copy the official Delay Letter (proof that SSN has been requested)

• When SS card is received, make a copy and

keep with the I-9

• Documents applied for but not received

▫ Renewal of employment authorization document – must have renewal or employee must be terminated. ▫ Replacement social security card, driver’s license, etc.

• Complete the I-9 on time

▫ Copy the official Receipt Notice (proof that

document has been requested)

• When document is received, make copy and keep

with I-9

• Sample of a Receipt Notice from CIS

• Restricted Social Security Card

▫ A social security card with restricted language is not a valid List C document

Employee must present an unrestricted card or a different valid List C document

• Late I-9

▫ Document the reason in writing and attach

to the I-9

• Review and correct your procedures

▫ Form I-9 is a federal compliance requirement

• Common mistakes in Section 1

▫ No employee printed name, maiden name, address or date of birth ▫ No “A” Number for employee who selects a “Lawful Permanent Resident” or “An alien authorized to work until ____” ▫ No employee signature or attestation date ▫ Not completing Section 1 by first day of work ▫ Not checking a box indicating citizenship status

• Common Mistakes in Section 2 made by employer:

▫ No acceptable List A or List B and List C Documents recorded ▫ No document title, issuing authority, document number or expiration date ▫ No employer title, name or address ▫ No date of hire

▫ No employer signature, printed name or date ▫ Not completing Section 2 by third business day after the date employee starts work for pay

• Common Mistakes made in Section 3 by the

employer: ▫ No document title, number or expiration date ▫ No date of rehire, if applicable ▫ No new name, if applicable ▫ No employer signature or date ▫ Completing Section 3 after employee’s work authorization has expired

• Each violation is subject to a fine
• Fines increased August 2016 by as much as 96%
• Prior range: $110 - $1,100 per violation
• New range: $216 - $2156 per violation

Example: Civil penalty range for 100 I-9 completed after the 3 business day deadline for completion increased from $110,000-$110,000 to $21,600 - $215,600.

• 1. Conduct routine self-audits
• completed annually
• supervised by an attorney
• 2. Audits should not be conducted by the person responsible for

the initial verification

• 3. Choose random samples for the self-audit (but be careful not to

target certain nationalities)

• 4. Self-audits allow for corrective action and additional training

• 5. Maintain a Compliance Program
• a. An assessment of the company’s most significant

immigration-related risks

• b. Program addresses these risks
• c. Have an audit function that confirms the company’s

compliance procedures are being followed.

ICE Audits

• ICE Agents show up unannounced
• Will have a Notice of Inspection in hand
• Can be tipped off through the public or another

government agency

• No obligation to provide I-9 documentation when the

Notice of Inspection is served

• Employers have 3 business days to produce the I-9s
• ICE may also request supporting documentation (copy of

payroll, list of current employees, business license).

• Potential Traps:

· ICE Agents may casually ask questions related to hiring or I-9 protocols · Responses could be used against Employer · Very important to establish a detailed audit preparedness protocol

1) Front desk should know who to contact in the company (HR, CEO) 2) Counsel should be notified immediately 3) Employees should not provide more information than is requested 4) Employees should not allow ICE to inspect documents outside the scope of the Notice of Inspection or Subpoena

► Keep I-9s within reach

1) Crucial that Employer is able to produce I-9s as part of an audit within 3 business days. 2) Ensure that current employee lists are up to date and available 3) I-9s are organized in a fashion that allows for production as requested 4) Make sure there is an I-9 on file for every employee

► Make copies of I-9s before producing

• riginals to ICE

1) Ensures there is an onsite record of the original I-9s produced in case of a discrepancy later 2) Allows Employer to carefully check the I-9 forms produced and handed over to ICE

► Once Inspection is Complete

1) ICE will notify Employer of results in writing 2) Most common notices indicate compliance, suspect documents, technical violations and an Intent to Fine. 3) If charged with violations, Employer has

• pportunity to either negotiate a settlement with ICE or

request a hearing before the Office of the Chief Administrative Hearing Officer within 30 days of receipt of the notice from ICE.

• Employer can only correct errors in Section 2

and 3

• Employee should correct any errors in

Section 1

• Best way to correct I-9 is to:

▫ draw a line through the incorrect information (in different color ink) ▫ enter the correct information ▫ initial and date the correction

• Make sure:

▫ Information is clear and can be read ▫ Date of hire entered in Section 2 matches the date in the payroll records ▫ Highlighting marks, hole punches and staples do not interfere with information on the form ▫ Copies of documentation retained with I-9 are legible

▫ Abbreviations will be understood if the forms are inspected. ▫ All applicable sections of the form are completed. ▫ The current version of the Form 1-9 is used (the current acceptable version for use is the form with a revision date of 07/07/17. No other versions are acceptable as of September 18, 2017).

 Storage

 Form I-9 MUST be on file for all current employees

hired after November 6, 1986

 Store I-9s in a secure way – on site, off-site, storage

facility or electronically

 Store I-9 and copies of verification documents

together

 Ensure that only authorized personnel have access to

stored Forms I-9

 Make I-9s available within 3 days of a government

• fficial request for inspection

 Retention

 Forms I-9 must be stored for:

□ As long as the employee is employed; and

 3 years after date of hire; OR  1 year after date of termination, whichever is later

 Example:

Joe Smith was hired on Nov. 1, 2014 and terminated on July 5, 2016.

• Nov. 1, 2014 + 3 years = Nov. 1, 2017

July 5, 2016 + 1 year = July 5, 2017 *The retention date is Nov. 1, 2017.

• Employees must be treated in a non-discriminatory

manner when verifying identity and work authorization.

• You may NOT:

▫ Demand that employee show specific documents ▫ Refuse to accept an employee’s documents or

refuse to hire an individual because of an unfounded suspicion that the document is fraudulent. (Ex. Refuse to

accept a U.S. Passport because the employee has limited English proficiency.)

• You may not (con’t):

▫ Treat an individual differently than other applicants because he or she, or you believe he or she, is a U.S. citizen or noncitizen. ▫ Ask to see an individual’s employment authorization documents before you hire that individual or before he

• r she completes Form I-9.

• You may not (con’t):

▫ Refuse to accept a document or refuse to hire an individual because the document expires in the future. ▫ Limit jobs to U.S. citizens. ▫ Demand a specific document when reverifying that an employee is authorized to work.

• As the Employer, you MUST:

▫ Provide the employee with the complete Form I-9, including the instructions ▫ Accept documentation provided by the employee if it reasonably appears to be genuine and to relate to the employee ▫ Allow the employee to choose what documentation to provide ▫ Reject any document that does not reasonably appear to be genuine or to relate to the employee

• Occurs when an employer treats individuals differently
• n the basis of national origin or citizenship status in the

Form I-9 process.

• 4 types of conduct:

▫ Improperly requesting that an employee produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;

▫ Improperly requesting that employees present a particular document, such as a “green card” to establish identity and/or employment authorization; ▫ Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and

▫ Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents that you do not require other employees to present.

 What is E-Verify?  Form I-9 must be completed before a case can be created in E-

Verify

 Electronically verifies the employment eligibility of newly

hired employees

 Existing employees assigned to work on a qualifying federal

contract

 Free web-based service  Fast and easy to use  Partnership between the U.S. Department of

Homeland Security (DHS) and the Social Security Administration (SSA)

 E-Verify is not…

 …a system that provides immigration status  …used for prescreening  …a safe harbor from worksite enforcement

 E-Verify Goals

• Reduce unauthorized employment
• Minimize verification-related discrimination
• Be quick and non-burdensome to employers
• Protect civil liberties and employee privacy

State E-Verify Requirements



I-9 Process



Employee completes Form I-9, Section 1.



Employee chooses which acceptable document(s) to present.



Employer completes Form I-9, Section 2.



If necessary, employer updates or re-verifies employee’s work eligibility in Section 3.



I-9 Process with E-Verify



Employee must include SSN when completing Form I-9, Section 1.



If the employee has not been issued his SSN, complete Form I-9 as usual and attach a memo to Form I-9 indicating the reason for the delay in creating the case in E-Verify.



If employee provides email address, employer MUST enter it into E-Verify.



Employee chooses which acceptable document(s) to present.



If a List B document is chosen, it MUST contain a photograph.



If an employee chooses to provide a photo matching document, the employer must make a photo copy and retain with the Form I-9.



Employer completes Form I-9 Section 2.



For Section 3: E-Verify Case Status will prompt employer to update or reverify in Section 3 or Form I-9. However, a case should NOT be created in E-Verify.

• How to Enroll

• Enrollment Resources

• When to Verify?

□ You must enter Form I-9 information into E-Verify for all newly hired employees no later than the third business day after the employees’ start date.

• Initial Results: Initial verification will return one
• f three results in just seconds.
• 1. Employment Authorized

The employee is authorized to work.

• 2. Tentative Nonconfirmation

There is an information mismatch.

• 3. DHS Verification in Process

DHS will usually respond within 24 hours with either:

• Employment Authorized
• r
• DHS Tentative Nonconfirmation

 Results after TNC

You should check E-Verify periodically for one of the following responses:

►Employment Authorized ►Review and Update Employee Data ►Case in Continuance ►DHS Verification in Process ►DHS No Show ►Final Nonconfirmation

• Handling a TNC Employee Rights

The employee has eight federal government workdays from the referral date to visit or call the appropriate agency to start to resolve the discrepancy. The employee continues to work during the TNC resolution process. Federal law prohibits employers from terminating employment of an employee because of an interim case result until the TNC becomes a Final Nonconfirmation.

What is myE-Verify ∙myE-Verify is a new, free web-based service for employees to participate in the E-Verify process.

 Confirm your work eligibility  Create a myE-Verify account  Protect your identity  Learn about your rights

• E-Verify Website: www.dhs.gov/E-Verify

 If an Employer chooses to enroll, it should add E-

Verify to its job announcements Example: “Our company uses E-Verify to confirm the employment eligibility of all newly hired

• employees. To learn more about E-Verify, including

your rights and responsibilities, please visit www.dhs.gov/E-Verify.”

 The Trump Administration has issued policy

directives to enhance interior enforcement and has proposed budget increases for ICE to give it additional resources to achieve these new policy directives

 Federal Prosecutors are showing an increased

interest in proceeding criminally against employment verification failures.

 Be sure to have an I-9 Compliance Procedure in

place and conduct annual Self-Audits to assure compliance with company procedures

Thank you! Comments or questions:

Leslie S. Johnson Phone: 614.233.5161 E-mail: ljohnson@hahnlaw.com