CIR and I-9 Employment Eligibility Verification Compliance
CIR and I-9 EmploymentCIR and I-9 EmploymentEligibility VerificationEligibility VerificationComplianceCompliancePresented by:Presented by:David H. Nachman, Esq.David H. Nachman, Esq.Nachman, Phulwani, Zimovcak Law Group, P.C.Nachman, Phulwani, Zimovcak Law Group, P.C.
Immigration Reform and ControlAct of 1986 (“IRCA”)11/6/1986Requires that all employers completeEmployment Eligibility Form (I-9) for newlyhired employees.Designed to control the problem of illegalimmigration
IRCA’s ProvisionsNew Employee must provide documents reflecting:He/She is eligible to workIdentity must match work eligibility documentsSanctions for paperwork violations and document abuse.Sanctions for knowingly hiring or retaining unauthorizedworkers.Created the OSC to enforce anti-discrimination provision of theINA.
Changes After IRCA 1990 -1996Immigration Act of 1990 (“IMMACT 90”).Document Fraud Provisions against Employers.Bono Amendment and the “Good FaithDefense” for Employers.Illegal Immigration Reform And ImmigrantResponsibility Act (“IIRAIRA”).
Changes After IRCA1997 – Interim Rule Reducing the Number ofDocuments 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 thechanges from 1997.Version update – 8/7/2009New Version to be implemented – 5/7/2013
Updates In 2009Expired Documents are no longer acceptable forinitial verifications.Section 1: Separate boxes for U.S. nationals andU.S. Citizens (4 boxes instead of 3).Old Temporary Resident Cards and EmploymentAuthorization Cards were no longer acceptable.Added Acceptable Documents to List A:U.S. Passport cardPassport from Federated States ofMicronesiaPassport from Republic of the MarshallIslands
RECENT UPDATES: The New TwoPage I-9 FormIn March 2012, proposed new I-9 form waspublished for public comment2 page long New I-9 Form takes 35 minutes tocomplete as per USCISStill uncertain when the New I-9 Form will be ineffect on May 7, 2013 pr the Federal Register.
Why do we need a new I-9?Increasing worksite enforcement and fines forminor mistakesEmployer and Employee ConfusionLots of external guidance, which was ofteninconsistent (and still is).
Section 1 Employee InformationProposed Changes:Changes to Last and First Name FieldsMaiden name has become “Other Names”SSN boxesEmail address and telephone numberNote: DOB… M, D, Y order.
Section 1 AttestationProposed Changes:“USCIS Number” mentioned in instructionsForeign Passport InformationMore defined signature box3-D Barcode – What’s that?
Section 1 Preparer/TranslatorImportant Noticeable Points:When to complete?How are electronic I-9s impacted?Employee page only – Employer does secondpage.
Section 2 Employer ReviewEmployee name moved belowsection 2 instruction – required fieldand another potential error field.Instructions to prevent over-documentationBarcode – What’s thatList A “third document” fields added – HRrequires training for nonimmigrant verification
Section 2 CertificationImportant Noticeable Points:Attestation is numbered – Delineates obligations of the employer.Employee’s “first day of employment” is more visibleSeparate employer address fieldsNote: M, D, Y order.
Section 3 Reverification & RehiresImportant Noticeable Points:No longer for updating?Still no place for issuing authorityNew “Print Name” fieldNotary should use name of Employer.
Employer SanctionsEmployer SanctionsEmploying Unauthorized Aliens:Employing Unauthorized Aliens:$250-$10,000 per alien.$250-$10,000 per alien.Improperly Completed, Retained or Missing Forms:Improperly Completed, Retained or Missing Forms:$100-$1,000 per employee.$100-$1,000 per employee.Knowingly Hiring or Continuing to Employ Unauthorized Alien:Knowingly Hiring or Continuing to Employ Unauthorized Alien:Up to $3,000 per unauthorized alien.Up to $3,000 per unauthorized alien.Imprisonment (if convicted).Imprisonment (if convicted).Participating in Document Fraud:Participating in Document Fraud:11ststoffense: $250-$2,000.offense: $250-$2,000.Additional offenses: $2,000-$5,000.Additional offenses: $2,000-$5,000.Discrimination:Discrimination:$250-$2,000 - $10,000 per individual.$250-$2,000 - $10,000 per individual.Requesting Specific Documentation:Requesting Specific Documentation:$100-$1,000 per individual.$100-$1,000 per individual.
Internal AuditsInternal AuditsMissing or deficient I-9 Forms discovered duringMissing or deficient I-9 Forms discovered duringan audit.an audit.Missing I-9’s - complete one immediately andMissing I-9’s - complete one immediately andattach an explanatory note for your records.attach an explanatory note for your records.Deficient I-9’s - immediately correct andDeficient I-9’s - immediately correct andinitial/date any changes.initial/date any changes.Termination of employees who cannot provideTermination of employees who cannot providevalid documents to avoid “knowing hire” orvalid documents to avoid “knowing hire” or“knowing retention” violations.“knowing retention” violations.Exemptions from I-9 requirement.Exemptions from I-9 requirement.
Recent EnforcementRecent EnforcementJuly 2009 - ICE announced and changed its“Worksite Enforcement” policy.Since that time, there has been an increase inNotices of Inspection (NOIs). In July, 654 NOIswere issued, and an additional 1,000 businesseswere served with NOIs in November 2009.in October of 2009, an internal ICEmemorandum was released outlining ICE’sworksite policy that reinforced its commitmentto levy civil fines against employers, while also“re-focusing efforts to develop criminal casesagainst employers who hire and use illegalworkers.”
New Enforcement Methodology of the ICEProtocols and ProceduresNo More Raids: “Today’s enforcement action ispart of a multi-phased approach utilized by ICEto ensure that employers are held accountablefor maintaining a legal workforce.” – Baltimore Special Agent inCharge William WinterEmployers will likely now see:Worksite enforcement actions targeting allegedly“egregious bad faith actors”Forensic auditors scrutinizing Form I-9s
Mergers and AcquisitionsIf a business is acquired by another, the newemployer must obtain the I-9’s of the acquiredentity and will be held responsible for anydeficient forms.New I-9 Forms do not have to be completed.If employer chooses to do I-9’s be sure to useNEW I-9 Form.
Contract EmployeesCompanies are not required to maintain I-9’s forcontract employees.The contractor is responsible for completing Form I-9’sfor its own employees.Employers must not contract labor to avoid directlyhiring unauthorized aliensKnowingly using a contractor that employsunauthorized 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 companyrepresentative.Employers are given 3 days to provide I-9s forinspection by ICE (Call your lawyer!)There have been approximately 3,000 auditsinitiated this year alone.Specific practices vary from office to office, andsometimes even from agent/auditor toagent/auditor.
In November 2009, ICE provided partialstatistics on the 654 July NOIs:ICE agents reviewed more than 85,000 Form I-9sand identified more than 14,000 suspectdocuments - approximately 16 percent of the totalnumber reviewed.To date, 61 Notices of Intent to Fine (NOIFs) havebeen issued, resulting in $2,310,255 in fines.267 cases are currently being considered for NOIFs.ICE closed 326 cases after businesses were foundto be in compliance with employment laws or afterbusinesses were served with a Warning Notice inexpectation of future compliance.
Investigative Interviews to discuss I-9 Auditwith ICE, Forensic Auditor and EmployerThe 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 visaprogram?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 issuinga “Notice of Technical Violations,” providing a 10-day opportunity for theemployer to correct the errors.In cases that warrant such action, ICE may also issue a “Notice of SuspectDocuments” listing certain employees where it is unclear if they areunauthorized to work.Employers are then provided with time to contact the listed employees andhave 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 Noticevaries.In other cases, ICE can move forward immediately with issuing a Notice ofUnauthorized Aliens.Even with a final noticesuch as this, companies should carefully review the listing for errors on the
Final Notices from ICEIf a review of the I-9 files reveals that theemployer has small violations, but the companyis generally in compliance (and ICE expectscontinued compliance in the future) ICE maysimply issue a “Warning Notice” to theemployer.If there is a serious I-9 violation, a pattern ofnoncompliance, or the employer fails to correctits technical violations, ICE can draft a Notice ofIntent to Fine (NOIF) to the employer.
The Role E-Verify Plays in an I-9Audit/Investigation by ICEICE has been “encouraging” employers to enrollin E-Verify by using language such as:“If the company doesn’t agree to use E-Verify, thenit will likely be assigned fines during its next I-9audit,” or“E-Verify will eliminate the possibility of hiring ofany criminal aliens.”E-Verify is clearly a critical best practice andcertainly the most advanced tool available toemployers today.
USCIS E-Verify Program“Voluntary” program for US Employers.Partnership between the Department ofHomeland Security (DHS) and Social SecurityAdministration (SSA).Provides a means for participating employers toverify the employment eligibility status ofnewly-hired employees.
What is E-Verify?The E-Verify system, formerly known as theBasic Pilot/Employment Eligibility VerificationProgram, is an internet-based system operatedby DHS (CIS) in partnership with SSA that allowsparticipating employers to electronically verifythe employment eligibility of their newly hiredemployees.
Federal Contractors and E-Verify:The proposed EFFECTIVE DATE of the FINAL RULE forthe E-Verify Registration for Federal Contractors wasJanuary 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 inExecutive Order 13465 promulgated by PresidentClinton in 1996 (February 1996).Executive Order 13456 promulgated by President Bushfurther supported Clinton’s Executive Order.
Enrollment in E-Verify(1) Enroll as a Federal Contractor in the E-Verifyprogram within 30 calendar days of the contractaward, 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 initiateverification of employment eligibility of all new hires ofthe Contractor, who are working in the U.S., whetheror not assigned to the contract (and within 3 businessdays after the date of hire); and(b) For each employee assigned to the contract, initiateverification within 90 calendar days after the date ofenrollment or within 30 calendar days of theemployees assignment to the contract, whicheverdate is later.
Once in E-Verify:Federal Contractor at the time of the contractaward, shall use E-Verify to initiate verificationof employment eligibility of:ALL NEW EMPLOYEESEMPLOYEES ASSIGNED TO THE CONTRACT
E-verify and Paper I-9sE-verify does not replace the need to do a paperI-9. It is simply and electronic way for theemployer to verify what is on the form I-9.The I-9’s still have to be retained.E-Verify as one component of prospectiveComprehensive Immigration Reform.
I-9 RetentionForms must be retained for:One year following an employee’s termination.Three years from the employee’s date of hire.WHICHEVER IS LATER!
Mitigation FactorsThe following are mitigating factors that aretaken into account by ICE and other regulatoryagencies when determining the fines inconnection with I-9 Audits/Investigations:Size of BusinessActing in good faithThat the violations are non-serious.That there is no history of previous violations.That none of the counts involved aliens who areunauthorized to be employed in the United States.
The Good Faith Defense and WhatEmployers Need to KnowUnder the Bono Amendment, employers that arefound to have committed certain omissions or failuresin the I-9 procedures will not be subject to a fine, butwill be given notice of the “technical” violations, andwill be granted 10 days to cure the deficiencies.Subsequently, in 1997, then-INS General Counsel PaulVirtue issued a memorandum that outlined theagency’s position regarding which violations were“substantive” and which were “technical or proceduralThe following year, INS published a proposedregulation which defined “substantive” versus“technical violations,” largely following the VirtueMemorandum
Substantive vs. Technical ViolationsIt has been determined that verification failures thatare NOT “technical or procedural” include thefollowing: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 businessdays to correct technical or procedural failures afternotification of such failures and corrects the failureswithin the designated time period is deemed to havecomplied with the requirements of section 274A(b) ofthe Act.
ObservationsRequests for copies of immigration filings are being made to USCIS duringthe audit/investigation process.There are disagreements regarding the definition of technical andsubstantive 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 ingeneral.There is more cooperation among government agencies, including datasharing agreements.ICE is developing more detailed training programs for the forensic auditorsas well as their Special Agents.No streamlined guidance regarding audit protocols for Electronic I-9s.
ICE’s IMAGE ProgramTo enroll in IMAGE, Employers must submit anapplication 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 ALLemployees 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 informemployers 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 SamePrograms.Annual Report to ICE with results of program participation.
Advice to EmployersAdministrative audits are clearly the tool of choice andemployers can expect them to continue to increase innumbers and gain momentum in terms of impact andexpense. With a likely push towards an integration ofthe Form I-9 and E-Verify, along with the increased useof electronic I-9s, additional monitoring of the E-Verifysystem, and a better-trained and focused core of ICEagents, employers need to consider the importance ofproactive compliance planning and training. Althoughthe government’s mechanisms will continue to change,it is expected that the focus on audits will becomeeven more critical over time.
Any Questions?Any Questions?Feel free to contact David H. Nachman, Esq.Feel free to contact David H. Nachman, Esq.for more information at: 201-670-0006for more information at: firstname.lastname@example.org@visaserve.comOr visit us on the web at:Or visit us on the web at:www.visaserve.comwww.visaserve.com