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I-9 & E Verify Presentation

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Overview of I-9s and interplay with E-Verify

Overview of I-9s and interplay with E-Verify


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  • 1. E-VERIFY & I-9 COMPLIANCE: ARE YOU READY? Ilana J. Drummond & Daniel C. Horne 800.780.2008 www.jackson-hertogs.com
  • 2. INTRODUCTION
    • Why worry about I-9 procedures now?
    • The basics of I-9 compliance rules and interplay with E-Verify
    • Federal contractor (“FAR”) E-Verify rule
    • Benefits of using electronic I-9 systems
    • How to structure effective I-9 compliance policies
    www.jackson-hertogs.com
  • 3. WHEN DO YOU I-9?
      • Employee completes Sec. 1 on 1 st day of work
      • Employer completes Sec. 2 within 3 rd day of employment
        • employee must provide original documents for inspection
      • Exceptions:
        • Employer may complete I-9 procedure on or before first day of hire
          • Uniform policy
          • Special group
        • Hires of 3 days or less must complete I-9 on first day
    www.jackson-hertogs.com
  • 4. REVERIFICATION
    • Who and when?
      • Section 1 lists an expiration date
      • Section 2 documents indicate an expiration date
    • Employer should have a “tickler” system based on expiration dates to flag reverification
    • Must reverify using current I-9 Form
      • Can’t simply use Section 3 of prior form
    www.jackson-hertogs.com
  • 5.
    • Employer requests more or different documents than required by Form I-9 to establish identity and eligibility
    • Employer rejects valid documents
      • Ex: Asking foreign sounding applicant to show documents issued by USCIS
    • All citizens and work authorized aliens are protected against document abuse by IRCA
    • One advantage for an electronic system
    DOCUMENT ABUSE www.jackson-hertogs.com
  • 6.
    • Employers can maintain electronic I-9s
    • Any electronic I-9s must be searchable and readily viewable
        • Full indexing of all data elements
        • Ability to reproduce legible and readable hardcopies
          • think PDF images
        • “ reasonable controls” required to ensure integrity & accuracy of system
        • Employer cannot limit government’s ability to review and reproduce
    • Commercial software products and legal services available for I-9 storage and completion
    ELECTRONIC I-9 MAINTENANCE www.jackson-hertogs.com
  • 7. HOW LONG TO KEEP THE I-9?
    • Employers must keep completed I-9s for at least 3 years after hire , or 1 year after termination of employment, whichever is later .
    • Examples:
      • Employee is hired on 01/15/2006, quits on 02/02/2006. Must keep I-9 until 01/15/2009 – 3 years after hire .
      • Employee is hired on 01/15/2006, is laid off on 10/01/2008. Must keep I-9 until 10/01/2009 – 1 year after termination .
    • You must have a valid I-9 for every active employee
      • Exception: Grandfathered employees who were hired before IRCA (11/6/1986)
    www.jackson-hertogs.com
  • 8.
    • Employee should complete Form I-9 on first day of work – no exceptions!
      • Employee must complete Section 1 – cannot be completed by Employer
      • Completion of SSN is optional on I-9
        • unless employer is enrolled in E-Verify
    • Employer should complete Section 2 when documents are reviewed – no later than 3 days after employment begins
      • Employer must provide employee with list of acceptable documents and let employee choose documents
        • If enrolled in E-Verify, identity document must include a photo
    • Keep paper I-9s separate from other personnel records
      • Alphabetical index for I-9s that don’t expire
      • Tickler index by date for I-9s that require re-verification
      • I-9s for former employees should be kept separately until they may be destroyed.
    BEST PRACTICES: BASIC I-9 PROCESS www.jackson-hertogs.com
  • 9.
    • Decide whether company will keep copies of documents – apply consistent policy
      • All copies must be maintained with the I-9 Forms
      • If E-Verify enrolled, must maintain copies of all Green Cards & EADs that employees present
    • Decide where to maintain I-9s for company:
      • at worksite, HQ, or elsewhere?
    • Have regular I-9 training for all HR staff
    • Conduct regular internal audits of I-9s
    BEST PRACTICES: I-9 POLICIES www.jackson-hertogs.com
  • 10.
    • More than one person at company should check I-9s
      • Having additional review ensures that one person doesn’t create liability problem for entire organization.
    • Check I-9s that are being prepared for remote locations and worksites
    BEST PRACTICES: I-9 POLICIES www.jackson-hertogs.com
  • 11.
    • E-Verify is a DHS program that requests electronic verification of employment authorization at time of hire
    • Employer signs MOU with DHS and complies with E-Verify rules, including agreement to:
      • DHS audit of I-9s
      • on-site inspection of I-9s and
      • interviews of employees
      • submission of electronic E-Verify request within specified time limit – provides more work for HR
    • E-Verify still generates occasional erroneous “non-confirmation” responses
    • E-Verify now mandatory for certain federal contractors
    E-VERIFY PROGRAM www.jackson-hertogs.com
  • 12. E-VERIFY DOES NOT REPLACE THE I-9 PROCESS
    • E-Verify is not always consistent with I-9 process
    • E-Verify requires that the employee:
        • have an SSN and
        • present a picture ID
    • E-Verify participation creates a two-step process:
        • Complete the I-9; then
        • use that I-9 step to complete E-Verify
    • By complying with E-Verify, is the employer requiring over documentation in the I-9 context?
        • No, because its extra requirements derive from statute
    www.jackson-hertogs.com
  • 13.
    • Allows representatives from DHS to visit the worksite at any time (with reasonable notice) to review I-9s and speak with employees handling I-9s
    • Due process waived?
    • Also, MOU creates presumptions for enforcement under IRCA
    • E-Verify query
      • “ Yes” response:
        • Presumption individual work authorized;
      • If final non-confirmation, must terminate the employee or notify the USCIS that employer will continue employment
        • Rebuttable presumption that the person lacked work authorization
    MEMORANDUM OF UNDERSTANDING www.jackson-hertogs.com
  • 14.
    • FAR is the “federal contractor” E-Verify rule
    • FAR E-Verify requirement now in effect
    • Will employer E-Verify entire work force?
      • Or, will employer only query existing employees covered under federal contract and all new hires?
    • Contract award date triggers 30-day countdown to enroll in E-Verify and 90-day countdown to query existing covered employees
      • New hires must be run through E-Verify within 3 days of employment (unless no SSN then ASAP);
      • If opt to verify entire work force, then 180 day countdown to query all employees starts on date of enrollment
        • must update registration if already registered
    FEDERAL ACQUISITION REGULATION (FAR) RULE www.jackson-hertogs.com
  • 15.
    • Requirements
      • Identification of covered contracts
        • $100,000 or more for not off the shelf products
        • Subcontracts of $3000 or more
      • Identification of covered current employees
        • Does not include “support” personnel
      • Methods of tracking
        • E-Verify status of employees
        • New and/or expiring covered contracts
        • New assignments for current employees
        • Covered sub-contracts?
    • Special union workforce concerns?
      • Some union contracts may prevent employer from using E-Verify without violating contractual provisions
    FAR RULE, CONTINUED… www.jackson-hertogs.com
  • 16.
    • In response to new questions, USCIS is posting online updates to its E-Verify guidance for federal contractors:
      • guidance on transitioning from “covered employee” to “total” enrollment
      • Use of expired US passports for US citizens
    • Check in with USCIS E-Verify site for updates, (or subscribe to J&H newsletter)
    E-VERIFY FAR RULE NEWS www.jackson-hertogs.com
  • 17.
    • Work through your implementation and nonconfirmation processes before you enroll
    • Establish an audit process for nonconfirmation tracking and resolution
      • there are currently no ticklers in the E-Verify system!
      • there are ticklers in 3 rd party employment verification software that handshakes with E-Verify (see Ombudsman’s report)
    • Before enrolling in E-Verify
      • change your I-9 process and audit I-9s
      • train staff who will be responsible for I-9/E-Verify compliance
      • set up audit procedures and continue to periodically audit I-9s
    OTHER CONSIDERATIONS… www.jackson-hertogs.com
  • 18.
    • Always use current version of Form I-9
    • Latest Section 1 revision:
        • Citizen of the US
        • Noncitizen national of the US
        • Lawful permanent resident
        • Alien authorized to work . . .
    • Caveat : If E-Verify-enrolled, Social security number now required in Section 1
      • If individual has no SSN (e.g., application pending):
        • employer must complete the Form I-9, noting lack of SSN within 3 days and then run through E-verify when SSN issued
        • instruction is in the FAQs
    ISSUES: CURRENT FORM I-9 www.jackson-hertogs.com
  • 19.
    • Expired identity documents are no longer acceptable
      • E.g., expired US passport no longer acceptable
    • Must continue to let employee decide what documents to present
      • However, if E-Verify-enrolled, document containing a photo ID is mandatory
      • This means E-Verify-enrolled employer may be forced to reject once-suitable employment verification documents
    CHANGES TO ACCEPTABLE DOCUMENTS www.jackson-hertogs.com
  • 20. QUESTIONS?