Completing Section 2 ∙Completed by EMPLOYER. ∙MUST be completed no later than 3 business days after the employee begins work for pay. ∙EMPLOYER MUST examine original documents . ∙Documents MUST be UNEXPIRED .
•Section 2 must be completed no later than the third day of employment Ex: If employee starts work on Monday, Section 2 must be completed no later than Wednesday.
•What document does the employee need? ▫ List A – establishes both identity and authorization to work in the U.S. ▫ List B – establishes identity ▫ List C – establishes eligibility to work • One document from List A; or • One from List B and one from List C
Example of a valid List A Document:
•Can I accept this document? ▫ Original – no faxes or photocopies ▫ Signed ▫ Unexpired ▫ Appears valid
Examining Documents Genuineness and Photocopies ► You are not required to be a document expert ► You MUST accept a document presented by an employee if it reasonably appears to be genuine; AND, ► Relates to the individual presenting it ► The document MUST be original* – photocopies are NOT acceptable* * Exception : Certified copy of a birth certificate
•Record the Documents ▫ Use the correct columns -Do not record the List B document in the List C column ▫ Use the correct lines in each column -Document Title -Issuing Authority -Document # -Expiration Date ▫ Make a copy of each (if it is company procedure) -Attach copies to the I-9 -Do not copy any additional documents
•Future Expiration Dates ▫ Does not preclude continuous employment authorization; ▫ Does not mean that subsequent employment authorization will not be granted; and ▫ Should not be considered in determining whether the individual is qualified for a particular position.
•Complete the Certification ▫ Date employment began ▫ Signature (original), Name, Title ▫ Employer’s name and address ▫ Date
Section 2 – Employer Review and Verification You may delegate the authority to complete the I-9 to an agent HOWEVER, Employer will retain liability for any errors completed by the agent
Section 2: Receipt Rule A receipt showing that your employee has applied to replace a document that was lost , stolen or damaged . Employee must present a replacement document within 90 days of the hire date . The arrival portion of Form I-94/I-94A with a temporary I-551 stamp and a photograph of the individual. Receipt is valid until the expiration date on the stamp, or one year after the issuance date if the stamp does not contain an expiration date. Employee must show you their Permanent Resident Card (I-551) upon Expiration. The departure portion of the Form I-94/I-94A with a refugee admission stamp or computer-generated printout of From I- 94 with admission code “RE”. Employee must present an EAD or List B document and unrestricted Social Security Card within 90 days of the hire date. The receipt must be issued by the originating agency. Receipts are never acceptable if employment will last less than 3 business days.
Section 2 Reminders – Documents (Genuineness and Photocopies) MUST accept a document presented by an employee if it reasonably appears to be: Genuine AND Relates to the individual presenting it The document MUST be original – photocopies are NOT acceptable The only exception is a certified copy of a birth certificate
Section 2 – Employer Certification Reminders Employer certifies it has reviewed verification documents Completed by EMPLOYER Person who reviews documents MUST be person who signs in Section 2 MUST be completed no later than 3 business days after the employee begins work for pay Employer MUST examine original documents Documents must be UNEXPIRED
Section 2 Reminders – Copying Verification Documents You may choose to make copies of employee documentation presented to you for Section 2 If you choose to copy documents, you must do so for ALL employees, regardless of actual or perceived national origin, immigration or citizenship status, or you may be in violation of anti-discrimination laws.
Before On or After Sept. 18 Sept. 18 Previous Revised Form version of the I-9 must be Form I-9 completed OR Revised Form I-9 ›You MUST reverify an employee using Section 3 if his or her temporary employment authorization has expired. ›You MAY also complete Section 3 if you: ∙Rehire the EMPLOYEE within 3 years of the date of initial execution of the Form I-9* ∙Update the biographic information of an employee * USCIS recommends completing a new Form I-9 for rehires
• When is Section 3 used? ▫ Extension of work authorization ▫ An employee is rehired within 3 years of date of original I-9 ▫ Biographic information has changed (optional) • Make a copy of the supporting document ( if this is the policy of the Employer)
• U.S. Citizens and noncitizens nationals never need reverification. • Do not reverify the following documents: ▫ An expired U.S. Passport or Passport Card; ▫ A Lawful Permanent Resident Card (“green card”); ▫ A List B document that has expired.
• Do reverify: When an employment authorization document (List A or C) has an expiration date. Does not include a U.S. Passport or Lawful Permanent Resident card under List A.
• Rehires ▫ If rehired within 3 years, either: - complete new I-9 or - complete Section 3 of previously completed I-9 *Keep in mind that USCIS recommends completing a new I-9 for rehires
•Employee working at remote location or off-site ▫ 2 options to complete Section 2: 1. If through temp agency, agency completes I-9 on behalf of Employer. 2. Authorize a qualified agent a. Agent Authorization Form b. Remote Hire Notary Notice Form
• Social Security Number applied for ▫ Complete the I-9 form within the required timeframe ▫ Copy the official Receipt Letter (proof that SSN has been requested) ▫ Use the SSN on the letter to complete the I-9 • When SS card is received, make a copy and keep with I-9
•Social Security Number delayed ▫ Complete the I-9 on time ▫ copy the official Delay Letter (proof that SSN has been requested) • When SS card is received, make a copy and keep with the I-9
• Documents applied for but not received ▫ Renewal of employment authorization document – must have renewal or employee must be terminated. ▫ Replacement social security card, driver’s license, etc. • Complete the I -9 on time ▫ Copy the official Receipt Notice (proof that document has been requested) • When document is received, make copy and keep with I-9
• Sample of a Receipt Notice from CIS
• Restricted Social Security Card ▫ A social security card with restricted language is not a valid List C document Employee must present an unrestricted card or a different valid List C document
• Late I -9 ▫ Document the reason in writing and attach to the I-9 • Review and correct your procedures ▫ Form I-9 is a federal compliance requirement
• Common mistakes in Section 1 ▫ No employee printed name, maiden name, address or date of birth ▫ No “A” Number for employee who selects a “Lawful Permanent Resident” or “An alien authorized to work until ____” ▫ No employee signature or attestation date ▫ Not completing Section 1 by first day of work ▫ Not checking a box indicating citizenship status
• Common Mistakes in Section 2 made by employer: ▫ No acceptable List A or List B and List C Documents recorded ▫ No document title, issuing authority, document number or expiration date ▫ No employer title, name or address ▫ No date of hire
▫ No employer signature, printed name or date ▫ Not completing Section 2 by third business day after the date employee starts work for pay
•Common Mistakes made in Section 3 by the employer: ▫ No document title, number or expiration date ▫ No date of rehire, if applicable ▫ No new name, if applicable ▫ No employer signature or date ▫ Completing Section 3 after employee’s work authorization has expired
• Each violation is subject to a fine • Fines increased August 2016 by as much as 96% • Prior range: $110 - $1,100 per violation • New range: $216 - $2156 per violation Example: Civil penalty range for 100 I-9 completed after the 3 business day deadline for completion increased from $110,000-$110,000 to $21,600 - $215,600.
1. Conduct routine self-audits -completed annually -supervised by an attorney 2. Audits should not be conducted by the person responsible for the initial verification 3. Choose random samples for the self-audit (but be careful not to target certain nationalities) 4. Self-audits allow for corrective action and additional training
5. Maintain a Compliance Program a. An assessment of the company’s most significant immigration-related risks b. Program addresses these risks c. Have an audit function that confirms the company’s compliance procedures are being followed.
ICE Audits -ICE Agents show up unannounced - Will have a Notice of Inspection in hand - Can be tipped off through the public or another government agency -No obligation to provide I-9 documentation when the Notice of Inspection is served -Employers have 3 business days to produce the I-9s -ICE may also request supporting documentation (copy of payroll, list of current employees, business license).
• Potential Traps: · ICE Agents may casually ask questions related to hiring or I-9 protocols · Responses could be used against Employer · Very important to establish a detailed audit preparedness protocol
1) Front desk should know who to contact in the company (HR, CEO) 2) Counsel should be notified immediately 3) Employees should not provide more information than is requested 4) Employees should not allow ICE to inspect documents outside the scope of the Notice of Inspection or Subpoena
► Keep I-9s within reach 1) Crucial that Employer is able to produce I-9s as part of an audit within 3 business days. 2) Ensure that current employee lists are up to date and available 3) I-9s are organized in a fashion that allows for production as requested 4) Make sure there is an I-9 on file for every employee
► Make copies of I-9s before producing originals to ICE 1) Ensures there is an onsite record of the original I-9s produced in case of a discrepancy later 2) Allows Employer to carefully check the I-9 forms produced and handed over to ICE
► Once Inspection is Complete 1) ICE will notify Employer of results in writing 2) Most common notices indicate compliance, suspect documents, technical violations and an Intent to Fine. 3) If charged with violations, Employer has opportunity to either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer within 30 days of receipt of the notice from ICE.
• Employer can only correct errors in Section 2 and 3 • Employee should correct any errors in Section 1 • Best way to correct I -9 is to: ▫ draw a line through the incorrect information (in different color ink) ▫ enter the correct information ▫ initial and date the correction
• Make sure: ▫ Information is clear and can be read ▫ Date of hire entered in Section 2 matches the date in the payroll records ▫ Highlighting marks, hole punches and staples do not interfere with information on the form ▫ Copies of documentation retained with I-9 are legible
▫ Abbreviations will be understood if the forms are inspected. ▫ All applicable sections of the form are completed. ▫ The current version of the Form 1-9 is used (the current acceptable version for use is the form with a revision date of 07/07/17. No other versions are acceptable as of September 18, 2017).
Storage Form I-9 MUST be on file for all current employees hired after November 6, 1986 Store I-9s in a secure way – on site, off-site, storage facility or electronically Store I-9 and copies of verification documents together Ensure that only authorized personnel have access to stored Forms I-9 Make I-9s available within 3 days of a government official request for inspection
Retention Forms I-9 must be stored for: □ As long as the employee is employed; and 3 years after date of hire; OR 1 year after date of termination, whichever is later Example: Joe Smith was hired on Nov. 1, 2014 and terminated on July 5, 2016. Nov. 1, 2014 + 3 years = Nov. 1, 2017 July 5, 2016 + 1 year = July 5, 2017 *The retention date is Nov. 1, 2017.
• Employees must be treated in a non-discriminatory manner when verifying identity and work authorization. • You may NOT: ▫ Demand that employee show specific documents ▫ Refuse to accept an employee’s documents or refuse to hire an individual because of an unfounded suspicion that the document is fraudulent. (Ex. Refuse to accept a U.S. Passport because the employee has limited English proficiency.)
• You may not (con’t): ▫ Treat an individual differently than other applicants because he or she, or you believe he or she, is a U.S. citizen or noncitizen. ▫ Ask to see an individual’s employment authorization documents before you hire that individual or before he or she completes Form I-9.
• You may not ( con’t ): ▫ Refuse to accept a document or refuse to hire an individual because the document expires in the future. ▫ Limit jobs to U.S. citizens. ▫ Demand a specific document when reverifying that an employee is authorized to work.
• As the Employer, you MUST: ▫ Provide the employee with the complete Form I-9, including the instructions ▫ Accept documentation provided by the employee if it reasonably appears to be genuine and to relate to the employee ▫ Allow the employee to choose what documentation to provide ▫ Reject any document that does not reasonably appear to be genuine or to relate to the employee
• Occurs when an employer treats individuals differently on the basis of national origin or citizenship status in the Form I-9 process. • 4 types of conduct: ▫ Improperly requesting that an employee produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
▫ Improperly requesting that employees present a particular document, such as a “green card” to establish identity and/or employment authorization; ▫ Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and
▫ Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents that you do not require other employees to present.
What is E-Verify? Form I-9 must be completed before a case can be created in E- Verify Electronically verifies the employment eligibility of newly hired employees Existing employees assigned to work on a qualifying federal contract Free web-based service Fast and easy to use Partnership between the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA)
E-Verify is not … …a system that provides immigration status …used for prescreening …a safe harbor from worksite enforcement
E-Verify Goals •Reduce unauthorized employment •Minimize verification-related discrimination •Be quick and non-burdensome to employers •Protect civil liberties and employee privacy
State E-Verify Requirements
I-9 Process Employee completes Form I-9, Section 1. Employee chooses which acceptable document(s) to present. Employer completes Form I-9, Section 2. If necessary, employer updates or re- verifies employee’s work eligibility in Section 3. I-9 Process with E-Verify Employee must include SSN when completing Form I-9, Section 1. If the employee has not been issued his SSN, complete Form I-9 as usual and attach a memo to Form I-9 indicating the reason for the delay in creating the case in E-Verify. If employee provides email address, employer MUST enter it into E-Verify. Employee chooses which acceptable document(s) to present. If a List B document is chosen, it MUST contain a photograph. If an employee chooses to provide a photo matching document, the employer must make a photo copy and retain with the Form I-9. Employer completes Form I-9 Section 2. For Section 3: E-Verify Case Status will prompt employer to update or reverify in Section 3 or Form I-9. However, a case should NOT be created in E-Verify.
• How to Enroll
• Enrollment Resources
• When to Verify? □ You must enter Form I-9 information into E-Verify for all newly hired employees no later than the third business day after the employees’ start date.
• Initial Results: Initial verification will return one of three results in just seconds. 1. Employment Authorized The employee is authorized to work. 2. Tentative Nonconfirmation There is an information mismatch. 3. DHS Verification in Process DHS will usually respond within 24 hours with either: -Employment Authorized or -DHS Tentative Nonconfirmation
Results after TNC You should check E-Verify periodically for one of the following responses: ► Employment Authorized ► Review and Update Employee Data ► Case in Continuance ► DHS Verification in Process ► DHS No Show ► Final Nonconfirmation
• Handling a TNC Employee Rights The employee has eight federal government workdays from the referral date to visit or call the appropriate agency to start to resolve the discrepancy. The employee continues to work during the TNC resolution process. Federal law prohibits employers from terminating employment of an employee because of an interim case result until the TNC becomes a Final Nonconfirmation.
What is myE-Verify ∙ myE-Verify is a new, free web-based service for employees to participate in the E-Verify process. Confirm your work eligibility Create a myE-Verify account Protect your identity Learn about your rights
• E -Verify Website: www.dhs.gov/E-Verify If an Employer chooses to enroll, it should add E- Verify to its job announcements Example : “Our company uses E -Verify to confirm the employment eligibility of all newly hired employees. To learn more about E-Verify, including your rights and responsibilities, please visit www.dhs.gov/E-Verify .”
The Trump Administration has issued policy directives to enhance interior enforcement and has proposed budget increases for ICE to give it additional resources to achieve these new policy directives Federal Prosecutors are showing an increased interest in proceeding criminally against employment verification failures.
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