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 work Identity 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”).Illegal Immigration Reform And ImmigrantResponsibility Act (“IIRAIRA”).Document Fraud Provisions against Employers.Bono Amendment and the “Good FaithDefense” for Employers.
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.Most recent version – 8/7/2009
Recent UpdatesExpired Documents are no longer acceptable for initialverifications.Section 1: Separate boxes for U.S. nationals and U.S.Citizens (4 boxes instead of 3).Old Temporary Resident Cards and EmploymentAuthorization Cards are no longer acceptable.Added Acceptable Documents to List A: U.S. Passport card Passport from Federated States of Micronesia Passport from Republic of the Marshall IslandsMore updates coming in the future per CIS…
RECENT UPDATES: The New I-9?In March 2012, proposed new I-9 form waspublished for public commentComment period extended till October 15, 20122 page long New I-9 form, takes 35 minutes tocomplete as per USCISStill uncertain when the new I-9 form will be ineffect
Why do we need a new I-9?Increasing worksite enforcement and fines forminor mistakesCurrent I-9 form can be confusing and difficultto completeLots of external guidance, which is ofteninconsistent
Current vs The Proposed
Section 1 Employee InformationProposed Changes: Changes to Last and First Name Fields Maiden name has become “Other Names” SSN boxes Email address and telephone number
Section 1 AttestationProposed Changes: “USCIS Number” mentioned in instructions Foreign Passport Information More defined signature box
Section 1 Preparer/TranslatorImportant Noticeable Points: When to complete? How are electronic I-9s impacted?
Section 2 Employer Review Employee name moved below Instructions to prevent over-documentationsection 2 instruction List A “third document” fields added
Section 2 CertificationImportant Noticeable Points: Attestation is numbered Employee’s “first day of employment” is more visible Separate employer address fields
Section 3 Reverification & RehiresImportant Noticeable Points: No longer for updating? Still no place for issuing authority New “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 AuditsMissing or deficient I-9 Forms discovered duringan audit.Missing I-9’s - complete one immediately andattach an explanatory note for your records.Deficient I-9’s - immediately correct andinitial/date any changes.Termination of employees who cannot providevalid documents to avoid “knowing hire” or“knowing retention” violations.Exemptions from I-9 requirement.
Recent 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 ICE Protocols 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.There have been approximately 2,000 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-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 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 thepart of the government.
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-9 Audit/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, 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 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 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 employees 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-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.
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 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 Business Acting in good faith That 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 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 procedural The 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 during theaudit/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 auditors aswell 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 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.
Social Security No Match IssuesNo Match Letters are sent to both employersand 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 IssuesWithin 30 days, employer should check recordsand contact employee to check their recordstoo.Within 90 days the employee must take steps toresolve the issue.Then the employer has 3 final days to completea new I-9 (with a new SSN) if the issue was notresolved.
Any Questions?Feel free to contact David H. Nachman, Esq. for more information at: 201-670-0006 x100 firstname.lastname@example.org Or visit us on the web at: www.visaserve.com