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
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
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. SnagAJob.com & KMS Software disclaims all liability in respect to actions taken or not taken based on any contents of this presentation. The Small Print
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 Agenda
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
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
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.”
Three Buckets of Compliance Government Corporate, Franchise, Industry Operator Level
Everything you wanted to know about the Form I-9, ICE, and E-Verify but didn’t want to ask
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 .
I-9 Errors Self-audit I-9s annually (or completed by a vendor) Common employee errors:
If I-9 is over-documented, cross out extra documents, sign, date
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. .
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
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.
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:
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.
A federally driven program that helps protect employers from hiring/employing unauthorized or undocumented workers unknowingly
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.
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 or Automatically have I9 data uploaded from an electronic I-9 using a web services designated agent
E-Verify – how does it work? Result: Work Authorized Result: Tentative Non-Confirmation Result: Case Incomplete Photo-Matching Required
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
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.
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.
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.
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
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%
Over a dozen states currently require use of E-Verify for public and/or private employers and many more are considering mandating its use
Approximately 170,000 businesses nationwide currently using the federal E-Verify program
More than 1,200 employers per week register for the new program and approximately 83 % report that they are satisfied with its performance
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
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
House Appropriations Committee approved a 2 year extension of the E-Verify program – extending funding through fiscal year 2012
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.
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
The FAR rule requiring use of the E-Verify system:
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).
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.
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 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.
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:
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
The U.S. Immigration and Customs Enforcement (ICE) is the largest investigative branch of the Department of Homeland Security (DHS).
ICE is responsible for enforcement of the penalty provisions of IRCA.
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
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.
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
In FY ‘08, ICE worksite enforcement actions resulted in 1,103 criminal arrests and 5,184 administrative arrests.
Of the criminal arrests, 135 were owners, managers, supervisors or human resources employees who face charges that include harboring or knowingly hiring illegal aliens.
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
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
“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 ….
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
Audits force business to fire all workers, not just those working that day (when compared to raids)
Audits allow for greater efficiencies of ICE; thereby likely to grow
Over the past year, ICE has conducted audits of employee files at more than 2,900 companies.
More on ICE Audits
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?
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
Final thoughts April 29, 2005 Present, sign & store Form I-9 electronically Changed the acceptance of e-signature W-4 State tax forms Corporate Forms Only one form you can’t use e-signature (8850)
Best way to stay compliant Training Audit Don’t neglect current your I-9’s Leverage automation Pull people out of the process as much as possible
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
Using Automation ROI is often immediate & recognized in many area Creates greater organizational efficiencies Reduces errors Green factor Require little to none IT intervention
Bottom line…. An automated Onboarding process creates a compliant, documented, repeatable processand allows your managers to focus on your people and not their paperwork.