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  • Ro, this is not only for hiring in Puerto Rico, but anywhere in US a person presents a PR birth certificate
  • Cease and desist is this context is an order or request to halt an activity (cease) and not to take it up again later (desist); or else face legal action. In this context it is a remedy sought ICE or Office of Special Counsel where in addition to penalties assessed the employer agrees via settlement to stop its current illegal practice and not do it again.
  • Ro,Recommend you add an “OR” in here to show on screen two separate processes
  • Transcript

    • 1. Making heads or tails of a compliant onboarding process
      Presented by:
      Rosette Cataldo
      Vice President Business Development
      KMS Software Company, LLC
      OnBoarding the World One Click at a Time
    • 2. This presentation is intended for general information only and not as legal advice. 
      You should not rely on the information for any legal purpose, and contact your attorney to determine applicability to your situation. & KMS Software disclaims all liability in respect to actions taken or not taken based on any contents of this presentation.
      The Small Print
    • 3. Who is KMSSoftware?
      Definition of OnBoarding
      Main “gotcha’s” in re: to new hire onboarding compliance
      Did you know??……tid bits to take away re: onboarding
    • 4. Who Is KMS?
    • 5.
      • Founded: 1994
      • 6. Created industry’s first electronic OnBoarding solution: 1998
      • 7. Industry’s only 100% OnBoarding provider
      • 8. Expertise: Business Process Re-engineering, Workflow, Document Management, On-Line Forms and Electronic signature
      • 9. Designated Agent of The Dept of Homeland Security
      • 10. Hybrid (Direct & Channel) driven sales model
      • 11. Servicing over 70,000 customer locations
      • 12. Locations strategically positioned throughout the U.S.
      • 13. Privately held, MWBE (minority woman owned business enterprise)
      KMS Software Company
    • 14. Let’s start with your biggest risk
    • 15. Onboarding: The Official Definition
      The strategic process designed
      to attract and engage new
      employees, reaffirm their
      employment decision, acclimate
      them into the organization’s
      culture, and prepare them to
      contribute to a desired level as
      quickly as possible.
      Source: Aberdeen Group, January 2009
    • 16. Onboarding: The Unofficial Definition
      “Getting the new hire’s paper work
      filled out as quickly as possible so
      the employee can get trained,
      on the floor and behind the
      counter servicing our customers
      as fast as possible.”
      Source: An Old Chicago Pizzeria Operator
    • 17. KMS’ spin on The Unofficial Definition
      “Getting the new hire’s paper work
      filled out correctly and as quickly
      as possible so the employee can
      get trained, on the floor and behind
      the counter servicing our customers
      as fast as possible while keeping
      me out of jail and my company’s
      name off the front page of the newspaper.”
    • 18. Three Buckets of Compliance
      Operator Level
    • 19. Everything you wanted to know about
      the Form I-9, ICE, and E-Verify
      but didn’t want to ask
    • 20. The Form I-9 – A brief History
      1986 - Congress enacted the Immigration Reform and Control Act (IRCA) requiring all employers to verify the identity and work authorization of all individuals hired after November 6, 1986.
      This requirement is implemented through:
      The completion and execution of Section 1 of Form I-9 by the employee,
      Submission to the employer by the employee of acceptable I-9 identity and employment eligibility documents and
      The review and verification of these documents by the employer as documented on Section 2 of Form I-9.
      As of April ’09, the new Form I-9 must be used.
      Expired supporting documents are no longer permissible .
    • 21. I-9 Errors
      Self-audit I-9s annually (or completed by a vendor)
      Common employee errors:
      • Sec. 1 incomplete
      • 22. One of the three boxes not checked
      • 23. Wrong box checked
      • 24. No Alien Number, Admission Number, or expiration date
      Common employer errors:
      • No signature/date in Sec. 2
      • 25. No date of hire
      • 26. Sec. 2 not completed within three days of hire
      • 27. Documents copied and attached but Sec. 2 incomplete
      • 28. Accepted incorrect documents (hospital or foreign birth certificate, foreign passport)
      • 29. Accepted too many documents
      • 30. Documents do not relate to individual
    • I-9 Errors
      Correcting errors:
      • Use different color ink, sign or initial, date change
      • 31. Draw a single line through incorrect information
      • 32. Do not use correction fluid or obliterate
      • 33. Write missing information or correct information nearby
      • 34. If correction is result of different documentation, so note
      • 35. Use current date; never back-date
      • 36. If I-9 is over-documented, cross out extra documents, sign, date
      • 37. Date and initial by person making the correction
    • Errors & Fines
      Average Percentage of I-9’s completed with errors ~ 30% – 40%
      Sample federally mandated fines:
      For employers who fail to properly complete, retain, or make I-9 Forms available for inspection, fines range from $110 to $1,100 per individual I-9.
      Employers who require certain or too many documents commit document abuse and violate anti-discrimination provisions of the Immigration and Nationality Act (“INA”). Fines for document abuse range from $110 to $1,100.00 for each individual discriminated against.
    • 38. Bet you didn’t know….
      Keeping copies of List A & B or C documents:
      Not required by federal law, but permitted (Colorado requires)
      Upside: May be helpful for internal audits or as evidence in charges of fraud or discrimination
      Downside: May establish liability
      Practice of copying or not copying must be consistent
      Simply attaching copies to I-9 doesn’t relieve employer of responsibility to complete I-9 properly
    • 39. Hot off the presses
      New Puerto Rico Birth Certificates Effects I-9 Process
      The government of Puerto Rico passed legislation that invalidates all Puerto Rican birth
      certificates issued before July 1, 2010
      Beginning Oct. 1, 2010, employers may only accept certified copies of Puerto Rico birth
      certificates that were issued on or after July 1, 2010.
      This means that if an employee presents a birth certificate issued by the Vital Statistics
      Office of the Commonwealth of Puerto Rico, the employer must look at the date the certified
      copy of the birth certificate was issued to ensure that it is valid.
      Employers must not re-verify the employment eligibility of existing employees who presented
      a certified copy of a Puerto Rico birth certificate for Form I-9 purposes prior to Oct. 1, 2010.
    • 40. Unauthorized Aliens can cost you big time
      If DHS determines that you have knowingly hired unauthorized aliens (or are
      continuing to employ aliens knowing that they are or have become
      unauthorized to work in the United States), it may order you to cease and desist
      from such activity and pay a civil money penalty as follows:
    • 41. How are fines determined?
      In determining the amount of the penalty, DHS considers:
      The size of the business of the employer being charged
      The good faith of the employer
      The seriousness of the violation
      Whether or not the individual was an unauthorized alien
      The history of previous violations of the employer.
    • 42. What is E-Verify and Why Participate?
      • A federally driven program that helps protect employers from hiring/employing unauthorized or undocumented workers unknowingly
      • 43. The E-Verify system is an Internet-based system operated by DHS USCIS, in partnership with the SSA, that allows participating employers to electronically verify the employment eligibility of their new-hire or existing workforce.
      • 44. Before an employer can participate in the E-Verify program and use the E-Verify system, the employer must enroll in the E-Verify program and agree to the E-Verify Memorandum of Understanding (MOU) required for program participants.
    • E-Verify – how does it work?
      Manually key in data & manually manage results
      Automatically have I9 data uploaded from
      an electronic I-9 using a web services designated agent
    • 45. E-Verify – how does it work?
      Result: Work Authorized
      Result: Tentative Non-Confirmation
      Result: Case Incomplete Photo-Matching Required
    • 46. Tentative non-confirmation – now what?
      Tentative Non-Confirmation (TNS) Process
      Ability to correct misinformation, then re-submit
      • called a “SSA or DHS re-verify”
      If still issue, then the tentative non-confirmation contest process begins.
      The employee must decide if they want to contest or not contest the TNC results.
      Contest: Sign 2 forms.
      Physically got to SSA to rectify situation
      Have 8 federal government work days to do so
      Not contest: Employment will be terminated
    • 47. Case Incomplete – now what?
      Case Incomplete Photo Matching Process
      Applicable to Permanent Residents and Aliens Authorized to Work.
      E-verify will instruct you to look at I-551 or I-766 documents to match the pictures.
      The document on screen and tangible hard copy document must match.
    • 48. Common Questions re: E-Verify
      Q: When is the earliest I can initiate a query using E-Verify?
      A: After offer is accepted & Form I-9 is filled out completely. No later than three business days after start date can query be initiated.
      Q: Can I use E-Verify if the employee does not have a Social Security Number yet?
      A: E-Verify can not be used for employees that do not have SSN yet. You should complete I-9 and wait to run E- Verify query until you have SSN. You should note on Form I-9 why you are delaying E-Verify query. The employee is allowed to work temporarily.
    • 49. Common Questions re: E-Verify
      Q: Can I terminate using E-Verify at any time?
      A: Yes
      Q: Does Participation in E-Verify provide Safe Harbor from Worksite Enforcement?
      A: No. However, an employer who verifies work authorization under E-Verify establishes a rebuttable presumption that it has not knowingly hired an unauthorized alien.
    • 50. E-Verify – is it fast & accurate?
      According to recent USCIS Press Release, 99.6% of all employees who are authorized to work in the United States are verified through E-Verify without receiving a tentative non-confirmation (TNC) or having to take any type of corrective action.
      Non-confirmations occur almost exclusively because:
      • The employee is not authorized to work in the United States
      • 51. The employer made an error when entering information into the E-Verify system.
      E-Verify returns initial verification information within 3 to 5 seconds.
      USCIS estimates that it takes an average of 12 minutes to learn about, complete, assemble, and file the I-9 form.
      Automation of the process with the KMS OnBoarding can replace this process by greater than 60%
    • 52. E-Verify: Strong and Growing
      • Over a dozen states currently require use of E-Verify for public and/or private employers and many more are considering mandating its use
      • 53. Approximately 170,000 businesses nationwide currently using the federal E-Verify program
      • 54. More than 1,200 employers per week register for the new program and approximately 83 % report that they are satisfied with its performance
      Source: xxx
    • 55. State-By-State Breakdown on E-Verify
      States requiring all employers to verify employment eligibility via E-Verify:
      • Mississippi, Arizona, South Carolina, and Utah
      States requiring certain employers and state agencies to verify the employment eligibility of new-hires by using the E-Verify system:
      • Alaska, Colorado, Georgia, South Carolina, Idaho, Missouri, Minnesota, Pennsylvania, Oklahoma, and Rhode Island
      • Tennesseeencourages employers to use E-Verify
      • 56. California, Colorado, Florida, Iowa, Illinois, Indiana, Kansas, Minnesota, Missouri, New Jersey, Pennsylvania, Rhode Island, Tennessee and West Virginia are considering new immigration laws involving E-Verify
      Source: Law Firm of Fisher & Phillips
    • 57. How We Got to Where We Are Today…
      • House Appropriations Committee approved a 2 year extension of the E-Verify program – extending funding through fiscal year 2012
      • 58. On August 26, 2009, a U.S. District Court issued a long-awaited decision in Chamber of Commerce of the United States of America v. Napolitano passing a law (FAR Case 2007–013, Employment Eligibility) requiring that federal contractors use E-Verify to check the employment eligibility of all newly hired employees, as well as all current employees directly working on a contract.
      • 59. The rule went into effect on September 8, 2009.  This deadline means that most federal contracts awarded, as well as solicitations issued after September 8, 2009, must include a clause mandating use of E-Verify for all employees hired during the contract period and all existing employees assigned to perform work under the contract. 
    • What is FAR?
      • FAR is an acronym for Federal Acquisition Regulation
      • 60. The FAR rule requiring use of the E-Verify system:
      • 61. Only affects federal contractors who are awarded a new contract after September 8, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704).
      • 62. Implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.   The amended Executive Order reinforces the policy, that the federal government does business with companies that have a legal workforce.
      • 63. Rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.
    • Proper Use of the E-Verify System with FARS
      FAR does allow a Federal Government contractor to run their entire workforce through E-Verify or just those U.S.-based employees( including: Puerto Rico, Guam, DC & US Virgin Islands)working on a contract that includes the FAR clause.
      You should not have to run your existing employee through E-Verify if:
      • The employee was hired BEFORE November 6, 1986
      • 64. Your employee has federal security clearance
      • 65. The employee was previously verified by your company
      If you do run your entire employee population through E-Verify, you have 6 months to do so.
      If you do run only your employees working on a Federal Government contract, you have 90 days after contract award to run those employees through E-Verify.
      If you company is not yet set up with E-Verify, you have 30 days to enroll from contract award date, then 90 days to run employees through E-Verify.
    • 66. Proper Use of the E-Verify System with FARS
      If you are already enrolled in E-Verify you must update your company profile to state that you are a Federal Government Contractor
      If you already have a contract with the Federal government and it is to continue for 6+ months or is an “indefinite-delivery/indefinite-quantity” the contract will need to be modified to include E-Verify clause.
      Some Federal contracts do NOT require participation in E-Verify:
      • Contract must be over $100,000
      • 67. Contract must extend beyond 120 days
      • 68. Contracts performed outside USA
      • 69. Commercial Off The Shelf (COTS) items
      • 70. Items sold in commercial market place or substantial quantity
      • 71. Very important final note re: FARS:
      • 72. If you pull data from a legacy Form I-9 of an existing employee the Form I-9 must be audited to confirm many criteria on that Form I-9 conform with new Form I -9 requirements.
    • Final thought on E-Verify
      “While not perfect, it is important to note that E-Verify is much more effective than the Form I-9 verification process used by employers not using E-Verify. E-Verify also deters many unauthorized workers from even applying for jobs with participating employers.”
      HR magazine, April 2010
    • 73. ICE, ICE, Baby!
      • The U.S. Immigration and Customs Enforcement (ICE) is the largest investigative branch of the Department of Homeland Security (DHS).
      • 74. ICE is responsible for enforcement of the penalty provisions of IRCA.
      • 75. ICE key initiative: Lawful Workforce and Employer Accountability
      “Employers have an obligation to verify that their employees are legally able to work in the United States. ICE seeks to create a culture of compliance that supports those companies that want to obey the law, while holding those that do not accountable for their actions.”
      Source: ICE Fiscal Year 2008 Annual Report
    • 76. The Role and Impact of ICE
      • In FY08, ICE began subjecting offending employers to debarment proceedings which can prohibit companies from receiving or competing for federal contracts. Debarment proceedings were launched against seven companies.
      • 77. Under federal regulations, contractors may be considered for debarment if they have been found to have either knowingly hired an unauthorized worker or continued to employ an alien once he or she became unauthorized (for example, after a work visa has expired).
      Many of those arrested face criminal charges for identity theft and Social Security fraud
    • 78. ICE Enforcement Trends
      • In FY ‘08, ICE worksite enforcement actions resulted in 1,103 criminal arrests and 5,184 administrative arrests.
      • 79. Of the criminal arrests, 135 were owners, managers, supervisors or human resources employees who face charges that include harboring or knowingly hiring illegal aliens.
      • 80. ICE secured nearly $21 million in criminal fines, penalties and forfeituresagainst employers in worksite enforcement investigations.
    • Authorities Raid Sizzler Restaurants,
      Arrest Undocumented Workers
      “The raids were part of a yearlong investigation into whether the operators of the two Sizzler locations broke a civil law by knowingly hiring illegal immigrants, Maricopa County Sheriff's Office Lt. Brian Lee said in a statement”
      Tip from a fired employee
      Employee claimed he had been fired for his refusal to hire employees
      without the proper documents
      Net result: Arrested nine (9), Bad Press
      6/12/10 – Associated Press
    • 81. In April, Michel Malecot, the chef of a popular bakery in San Diego, was indicted on 12 criminal counts of harboring illegal immigrants. The government is seeking to seize his bakery. He has pleaded not guilty.
      In Maryland, the owner of two restaurants, George Anagnostou, pleaded guilty last month to criminal charges of harboring at least 24 illegal immigrants. He agreed to forfeit more than $734,000
      Food Services & ICE
    • 82. “The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies’ records for illegal immigrant workers.”
      What’s new ….
    • 83. What is an ICE Audit?
      Sending federal agents to scour companies’ records for illegal immigrant workers.
      Net result?
      The goal of an audit is to create a “culture of compliance” among employers so that verifying new hires as common as paying taxes.
      Audits leave it up to employers to fire workers whose documents cannot be validated.
      An employer who fails to fire an employee risks prosecution
      Raids vs. Audits
    • 84. ICE Audits
      • Also known as “Silent Raids”
      • 85. Audits force business to fire all workers, not just those working that day (when compared to raids)
      • 86. Audits allow for greater efficiencies of ICE; thereby likely to grow
      • 87. Over the past year, ICE has conducted audits of employee files at more than 2,900 companies.
      More on ICE Audits
    • 88. Auditors contact the employer with Notices of Inspection (NOIs)
      Provide 72 hours notice before coming onsite and inspecting the employers Forms I-9s.
      ICE auditors examined I-9’s, which all new hires in the country must fill out. ICE then advises if SSN and immigration numbers do not check out with federal databases. (I9’s can be presented in electronic form)
      Based on the results of the audit, any illegal workers are processed and the employer faces potential fines and other actions.
      Ice may return and audit the employer again to make sure any corrective action has been taken.
      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
      ICE Audits – What happens?
    • 89. After ICE
      Who manages process after ICE?
      Fugitive Operations
      Enforces that if you are told to leave USA, you actually do
      Local level
      Knocks on doors, deports aliens on the spot
    • 90. Final thoughts
      April 29, 2005
      Present, sign & store Form I-9 electronically
      Changed the acceptance of e-signature
      State tax forms
      Corporate Forms
      Only one form you can’t use e-signature (8850)
    • 91. Best way to stay compliant
      Don’t neglect current your I-9’s
      Leverage automation
      Pull people out of the process as much as possible
    • 92. Using Automation
      Electronic onboarding is growing in popularity worldwide
      Best in class tools are:
      simple, allowing varying types of employees to easily use the solution
      populate forms with data fields keyed in by the new hire
      Fields & forms have rules, so errors can’t be made
      Data can be exported to HRIS, Payroll, POS, time & attendance
      Forms stored automatically, easy retrieval, secure
    • 93. Using Automation
      ROI is often immediate & recognized in many area
      Creates greater organizational efficiencies
      Reduces errors
      Green factor
      Require little to none IT intervention
    • 94. Bottom line….
      An automated Onboarding process creates a compliant, documented, repeatable processand allows your managers to
      focus on your people and
      not their paperwork.