Nuts and Bolts: Filling in the New I-9 Form

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This Nuts And Bolts Guide helps HR Mangers deal with the New I-9 Form and List of Acceptable Documents.
audio with the slides is available at
http://www.williamsmullen.com/filling-in-the-new-i-9-03-23-2009/.

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Nuts and Bolts: Filling in the New I-9 Form

  1. 1. MINI-WEBINAR March 23 &26 The Nuts and Bolts of Filling in the NEW I-9 Form Eliot Norman, Team Leader Worksite Enforcement and Corporate Immigration Compliance Team Williams Mullen 804-783-6482 enorman@williamsmullen.com For updates:http://tinyurl.com/immupdates www.williamsmullen.com/immigration 1 www.williamsmullen.com
  2. 2. Today’s Agenda What's quot;Newquot; and What's quot;Oldquot; with the April 3, 2009 Form No More Expired Documents? What's Changed on the List of Acceptable A, B, C Documents What About Receipts? Re-verifications? Handling H-1B Transfers/Extensions? Who Pays the Fine if the Employee Fills in Section 1 Wrong? Bonus: Friendly Quiz on the Hard to Handle Documents Q&A at the end PLEASE PUT YOUR PHONES ON MUTE UNTIL THE Q&A Questions,Answers, Comments welcome during the presentation by WEBEX chat 2 www.williamsmullen.com
  3. 3. PART I: CORPORATE IMMIGRATION COMPLIANCE RISKS Eliot Norman Worksite Enforcement and Corporate Immigration Compliance Team Williams Mullen 804-783-6482 enorman@williamsmullen.com For updates:http://tinyurl.com/immupdates www.williamsmullen.com/immigration 3 www.williamsmullen.com
  4. 4. Civil Penalties Against Employers for Immigration Violations Compliance Risks: What’s at Stake Substantive Violations: Range from $375 to $3200 for First Offense: Paperwork Violations: Range from $110 to $1100 for each I-9 Form Substantive fines: assessed per unauthorized employee Risk Factors: 50 to 1000 hires per year; 500 to 15,000 I-9 records Section 1 of the I-9 is then used to register on E-Verify E-Verify Fines for continuing to employ worker whose paperwork does not match DHS and SSAdministration records: $500 to $1000: $500 for failing to timely notify employee of non-conformance based upon information initially filled in on Section 1 of the I-9: As Federal Contractors: Penalties include debarment: Costs of responding to Audit, Administrative Subpoena, VALUE OF DESK AUDIT OF SAMPLE OF 25 FORMS: determine scope of problems in advance of government inspections, audits 4 www.williamsmullen.com
  5. 5. Where are you Vulnerable? Sloppy I-9 Records = problems: Loss of Affirmative “Good Faith” Defenses; loss of control. Unprepared for E-Verify. Sooner you get the I-9s right the better, with E-Verify coming into play May 21st: We will leave for another MinWebinar: Compliance with 9-10 Million SSN No-Match Letters: Yes, 10 million No-Match Letters will go out in 2009 to workers and their employers stating that the SSN for that employee does not match his name or is not a valid SSN. That employee may work for you. AND Dealing with E-Verify effectively after May 21st and setting up internal controls to avoid government fines and federal contract problems created by you or your subcontractors 5 www.williamsmullen.com
  6. 6. “Best Practices” and “Safe Harbors” 6 www.williamsmullen.com
  7. 7. Part II: The New I-9 Form and List of Acceptable Documents 7 www.williamsmullen.com
  8. 8. NEW I-9 FORM BEST COPY THAT GOVERNMENT WILL PRINT IN ADVANCE OF APRIL 3, 2009 8 www.williamsmullen.com
  9. 9. NEW I-9 FORM Effective April 3, 2009 Section 1: Employee fills in but Employer Pays Fine if its not Correct or Complete: Data Used For E-Verify Translator/Preparer Certificate Section 2: HR: Fills in Info From Originals of List A OR List B and C Documents HR Certification: “UNDER PENALTY OF PERJURY” Section 3: HR Re-Verifies Work Authorization, again under “penalty of perjury” 9 www.williamsmullen.com
  10. 10. (TITLE OF DOCUMENT GOES HERE) Department of Homeland Security OMB No. 1615-0047; Expires 03/31/07 Employment Eligibility Verification U.S. Citizenship and Immigration Services OLD I-9 FORM Please read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire an individual because of a 6/5/2007 to April 3, 2009 future expiration date may also constitute illegal discrimination. Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins. Print Name: Last First Middle Initial Maiden Name Section 1: Employee fills in Address (Street Name and Number) Apt. # Date of Birth (month/day/year) / / but Employer Pays Fine if its City State Zip Code Social Security # not Correct or Complete: Data I attest, under penalty of perjury, that I am (check one of the following): I am aware that federal law provides for □ A citizen or national of the United States imprisonment and/or fines for false ☒ A Lawful Permanent Resident (Alien #) A statements or use of false documents in Used For E-Verify / / □ An alien authorized to work until connection with the completion of this form. (Alien # or Admission #) Employee’s Signature Date (month/day/year) Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct. Translator/Preparer Certificate Preparer’s/Translator’s Signature Print Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year) / / Section 2. Employer Review and Verification. To be completed and signed by employer. Examine one document from List A OR examine one document from List B and one from List C, as listed on the reverse of this form, and record the title, number and expiration date, if any, of the document(s). Section 2: HR: Fills in List A OR List B AND List C Document title: Info From Originals of List A Issuing authority: Document #: OR List B and C Documents Expiration Date (if any): / / Document #: Expiration Date (if any): / / HR Certification: “UNDER CERTIFICATION - lattest, under penalty or perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year) and that to the best of my knowledge the employee is eligible to work in PENALTY OF PERJURY” the United States. (State employment agencies may omit the date the employee began employment.) Signature of Employer or Authorized Representative Print Name Title Business or Organization Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year) / / Section 3. Updating and Reverification. To be completed and signed by employer. Section 3: HR Re-Verifies A. New Name (if applicable) B. Date of Rehire (month/day/year) (if applicable) C. If employee’s previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility. Work Authorization, again Document Title: Document #: Expiration Date (if any): I attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the under “penalty of perjury” employee presented document(s) I have examined appear to be genuine and to relate to the individual. Signature of Employer or Authorized Representative Date (month/day/year) // NOTE: This is the 1991 edition of the Form I-9 that has been rebranded with a Form I-9 (Rev. 05/31/05)Y Page 2 current printing date to reflect the recent transition from the INS to DHS and its components. 1399043v1 10 www.williamsmullen.com
  11. 11. EMPHASIS in Announcement of New I- 9: Getting Section 1 Right 11 www.williamsmullen.com
  12. 12. NEW LIST OF ACCEPTABLE DOCUMENTS EMPHASIS: “ALL DOCUMENTS MUST BE UNEXPIRED” and Be more careful in Accepting List A Documents that show Identity and Work Eligibility 12 www.williamsmullen.com
  13. 13. OLD LIST OF ACCEPTABLE DOCUMENTS 13 www.williamsmullen.com
  14. 14. Part III: New I-9: Practical Impact on List A 14 www.williamsmullen.com
  15. 15. 15 www.williamsmullen.com
  16. 16. NEW LIST A , April 3, 2009 16 www.williamsmullen.com
  17. 17. OLD LIST A 17 www.williamsmullen.com
  18. 18. 18 www.williamsmullen.com
  19. 19. 19 www.williamsmullen.com
  20. 20. EAD (Employment Authorization Card) EXPIRATION DATE 20 www.williamsmullen.com
  21. 21. Focus of New I-9: Section 1 21 www.williamsmullen.com
  22. 22. Foreign Passport: India With Valid Photo ID 22 www.williamsmullen.com
  23. 23. I-797 Approval Notice for H-1B I-94 I-94 Expiration Date: July 15, 2010 23 www.williamsmullen.com
  24. 24. I-9 Done “Right” Section1: Employee completes data with # and Date. Determines how Section 2 to be completed by HR. Section 2: HR recognizes temporarily employed; Fills In List A with double combination of Foreign Passport and I-94 Card xxxxxxxxxxxxxxxxxxxxxxxxx TO DO: COME UP WITH SPREADSHEET REMINDER TO RE-VERIFY Section 3 July 15, 2010 24 www.williamsmullen.com
  25. 25. NEW LIST A , April 3, 2009 BIG FOCUS 25 www.williamsmullen.com
  26. 26. Part III: Impact of New I-9 Rules on List B Documents Practical Impact: Still the “old TSA at the airport routine” Can’t do it by proxy and can’t work with copies of the documents List B is going to get narrower and narrower for U.S. employees E-Verify is not going to let you rely on List B documents unless they have a Photo USCIS is not going to let you rely on List B unless documents unexpired What if documents don’t have an expiration date? Answer: treat them as if unexpired. 26 www.williamsmullen.com
  27. 27. 5. Military I.D. or Draft Record? 6. Military Dependent ID Card 7. U.S. Coast Guard ID 9. Canadian Drivers License MY FAVORITE: <18 yrs. old 12. Day-Care or Nursery School Record 27 www.williamsmullen.com
  28. 28. Part IV: Practical Impact of New I-9 on List C Documents No Material Changes in List C Documents BUT, new authority in Section 1 to insist on having employee present the documents showing basis for saying “authorized” to work [only] until [insert date]” SS Card: no restrictive endorsements: don’t accept Birth Certificate: must be certified What if Document doesn’t have an expiration date? Answer: treat it as if it is UNEXPIRED. 28 www.williamsmullen.com
  29. 29. NEW LIST C: Adds also Certificate of Report of Birth issued by Department of State 29 www.williamsmullen.com
  30. 30. “VALID FOR WORK ONLY WITH DHS AUTHORIZATION” UNEXPIRED DRIVER’S LICENSE 30 www.williamsmullen.com
  31. 31. List C: Restricted SS Card Don’t take it for List C if it says: not valid for employment; valid for employment only with DHS/INS authorization. Can make employee return with one with no restriction on it if he wants to use it for List C Typical Scenarios causing headaches for HR: Scenario #1: Newly naturalized U.S. citizen; but can’t use naturalization certificate under List A.(Natz. Certificate abolished as List A Document in 2005) No longer has Green Card. Has old SS Card when came as student with restriction on it: “Valid for Employment only with INS authorization”. He is telling you he is a U.S. Citizen in Section 1 but his SS Card conflicts with it. [If he is U.S. citizen , why does he need USCIS/DHS authorization to work?.He is not an alien anymore]. Go back and get a new one: or in the meantime, will need U.S. Passport (unexpired) 31 www.williamsmullen.com
  32. 32. List C: Restricted SS Card Scenario #2: Another Headache for HR H-1B employee comes in, gives you kitchen sink in documents Lets you Sort it out Don’t go the easy way: Take the Driver’s License and Social Security Card? Why? Section 1: he tells you he is authorized only to work for temporary period of time Can require him to give you proof of that Use List A 32 www.williamsmullen.com
  33. 33. Foreign Passport: India With Valid Photo ID 33 www.williamsmullen.com
  34. 34. “VALID FOR WORK ONLY WITH DHS AUTHORIZATION” UNEXPIRED DRIVER’S LICENSE 34 www.williamsmullen.com
  35. 35. I-797 Approval Notice for H-1B I-94 I-94 Expiration Date: July 15, 2010 35 www.williamsmullen.com
  36. 36. I-9 “Done Wrong” xxxxxxx Section 1: Not Complete xxxxxxxxx but employee is saying: I only have temporary work permit by checking box X=“An alien authorized to work until” Section 2 HR Uses Drivers Lic & SS Card xxxxxxx xxxxxxxxxxxxxxxxxxxxxxx 36 www.williamsmullen.com
  37. 37. I-9 Done “Right” Section1: Employee completes data with # and Date. Determines how Section 2 to be completed by HR. Section 2: HR recognizes temporarily employed; Fills In List A with double combination of Foreign Passport and I-94 Card xxxxxxxxxxxxxxxxxxxxxxxxx TO DO: COME UP WITH SPREADSHEET REMINDER TO RE-VERIFY Section 3 July 15, 2010 37 www.williamsmullen.com
  38. 38. I-797 Approval Notice for H-1B I-94 I-94 Expiration Date: July 15, 2010 38 www.williamsmullen.com
  39. 39. Focus of New I-9: Section 1 39 www.williamsmullen.com
  40. 40. Part V: Advanced I-9 Documents Documents that may not be New List A, B or C but which establish work authorization Affirmed by USCIS in FAQ, most recently over problems with E-Verify involving these situations: H-1B extensions and transfers : Can Work for 240 days based upon Receipt Notice or FEDEX receipt notice showing new H-1B extension petition timely filed: Use combination of Foreign Passport and Receipt in List A; Make sure you re-verify H-1Bs at 240 days Should instruct to come in with approval of H-1B (usually 2-4 months) as soon as it is received EADs for TPS (Temporary Protected Status) Central Americans: check regulations as they can usually continue working with automatic extension by regulations of Work Cards (I-688). But be careful: latest El Salvadoran extensions require proof of timely registration for extension and presentation of new Card on March 9, 2009 No exceptions per USCIS for spouses of L-1 and E-1/E-2 visa holders: must present EAD card to be able to work. 40 www.williamsmullen.com
  41. 41. Part VI: The “Nuts and Bolts” in Properly Completing the New I-9 Form Now that we have gone over “Acceptable Documents” lets review the Form Itself It has not changed substantively in any big way The emphasis has changed: get Section 1 “Done Right” and you stay out of trouble in Section 2 Section 3: be careful, watch restrictions on its use. Trend: Moving to electronic I-9s and E-Verify which relies on Section 1 Data 41 www.williamsmullen.com
  42. 42. Focus of New I-9: Section 1 42 www.williamsmullen.com
  43. 43. Impact of New I-9 on Completing Section 1 New list A tells you: burden on employer to make sure employee gets it right and complete Substantive violations: Corporation pays the fines SS # optional but won’t work when move to E-Verify You will rely on the data for E-Verify You will rely on its accuracy to complete Section 2 43 www.williamsmullen.com
  44. 44. Section 2: Avoiding Compliance Risks 44 www.williamsmullen.com
  45. 45. Impact of New I-9 on Completing Section 2 All Important Section 2 Only person who sees the Documents can fill in Section 2 Timing: 3 business Day Rule All Important Certification of Date of Hire Complete Section 2 from the Originals and Copy what you saw: Compare status checked in Section 1 with Documents handed you for Section 2 45 www.williamsmullen.com
  46. 46. Section 3:What is it? 46 www.williamsmullen.com
  47. 47. Impact of New I-9 in Completing Section 3 Can’t use Section 3 if Employee filled in the old I-9 Form that expired April 3, 2009: Do a new I-9. Be careful with Receipts Don’t over re-verify Suppose Documents expire after employee is hired: No need to Re-Verify Green Cards: Never Re-Verify Distinguish Green Cards from the I-551 Stamp in the Passport 47 www.williamsmullen.com
  48. 48. EAD (Employment Authorization Card) EXPIRATION DATE 48 www.williamsmullen.com
  49. 49. 49 www.williamsmullen.com
  50. 50. Part VI: Conclusion 1. Sample, Scorecard, Train, Audit and Certify: and then go back 6 months later and do it again 2. When Box 4 (temporary employment eligibility is checked in the new Section 1, “Stop, Look, and Listen” 3. Get the List of Available documents out as early as possible in the application process: New and old U.S. Citizens in particular are going to have problems with the new I-9; 4. Go to Electronic I-9s: internal check against filling in Section 1 incompletely and proceeding to Section 2; and making sure Section 2 squares with info on Section 1. 5. Scan existing I-9s and Documents presented and shred the paper ones. 6. Purge your I-9 Data using the 3yr/1yr Rule. 50 www.williamsmullen.com
  51. 51. Conclusion and Upcoming Events Critical to get I-9 Records in Order and Keep them that way with E-Verify and SSN “No Match” rolling out in 2009 All linked to that Section 1 To help: Upcoming “Nuts and Bolts” MiniWebinars: Going electronic with your I-9s: Shred the Paper; get rid of the Errors. Handling SSN “No Matches”: 10 million letters being sent 2009 E-Verify: “Nuts and Bolts:” 51 www.williamsmullen.com
  52. 52. 14 E-Verify States in Red 52 www.williamsmullen.com
  53. 53. Questions? Eliot Norman , Immigration and Worksite Enforcement Team 804-783-6482 enorman@williamsmullen.com For updates: http://tinyurl.com/immupdates www.williamsmullen.com/immigration 53 www.williamsmullen.com

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