The New Form I-9: What You Need to Know to Avoid the Pitfalls and - PowerPoint PPT Presentation

The New Form I-9: What You Need to Know to Avoid the Pitfalls and Stay Compliant David C. Whitlock, Esq. Miller & Martin PLLC Immigration Practice Group 404.962.6102 dwhitlock@millermartin.com Download slides and handouts for today’s presentation at http://downloads.agc.org/product/WB202

Learning Objectives • Identify the changes to Form I-9 and improve overall compliance; • Recognize the effect of the new Form I-9 on hiring managers and field personnel; • Understand the new rules for acceptable documents used to verify employment eligibility; • Understand the impact the new Form I-9 will have on the use of E-Verify; and Establish best practices for reducing risks and correcting errors when using the new Form I-9.

Increasing Enforcement • Bush Administration – April 19, 2006 IFCO raid – May 9, 2006 Fischer Homes – Swift Meat Co. raids – DHS Safe Harbor Rule – Agriprocessors raid – Federal Contractor rule Raids, Raids, Raids . . .

Increasing Enforcement • Obama Administration – More I-9 Inspections – 652 Notices of Inspection Sent on July 1, 2009 – 1000 Notices of Inspection Sent on November 19, 2009 – 180 Notices of Inspection Sent on March 2, 2010 in 5 states – 1000 Notices of Inspection Sent in mid-February 2011 Audits, Audits, Audits . . .

Increasing Enforcement • Obama Administration – George’s Processing Settles for $450k – Shipley Do-Nut Fined $250k and forfeits $1.33 Million – Pilgrim’s Pride Settles for $4.5 Million – Koch Foods pays over $500k for Administrative Violations

Enforcement OMG • November 2010 • Abercrombie & Fitch settles I-9 paperwork complaint for $1,050,000. • Based only upon stores in Michigan. • Complaint based in part upon problems with electronic software system.

Targeted Industries • Agriculture • Construction • Food Processing • Hospitality • Textiles • Others in national infrastructure

Comprehensive Immigration Reform • For the first time since 2007, there is a realistic possibility for Comprehensive Immigration Reform – Any reform statute will include dramatic increases in enforcement • More audits • Higher penalties • E-Verify mandate nation-wide

IRCA Basics: Prohibited Acts • Knowingly hire an alien who is not authorized to work • Hire any individual without verifying identity and work authorization • Continue the employment of a person if the employer knows or should know the person is not authorized to work

IRCA Basics: Prohibited Acts • Require an employee to present any specific document or combination of documents for I-9 purposes • Require an employee to present more or different documents than are minimally required for the employment verification process • Refuse to accept documents tendered by an employee that reasonably appear to be genuine on their face

IRCA Basics: Penalties • Fine per unauthorized alien for Illegal Employment Violations – $375 to $3,200 First Violation – $3,200 to $6,500 Second Violation – $4,300 to $16,000 Third & Other Violations Criminal Sanctions Likely After First Violation

IRCA Basics: Penalties • I-9 paperwork violations result in penalty of $110 to $1,100 for each individual • ICE does not believe that this penalty range encourages compliance, so higher penalties are likely

More Penalties • 10 years and/or $250,000 fine for harboring, smuggling, concealing, or transporting illegal aliens for financial gain – Employment is always viewed as “financial gain” • Criminal sanctions for conspiracy to harbor, smuggle, conceal, or transport

Before An Audit • Conduct periodic Self-Audits – At least once per year • Fix Errors on Forms – Can’t fix late forms – Can’t fix status for terminated • Keep I-9 Forms Out of Personnel Files – Sensitive Information – Time to Retrieve Forms • Set up files for terminated employees’ I -9 forms – Purge forms when retention test is met

If ICE Comes Knocking • Insist on the 3 Day • Prepare memorandum Notice period setting out what happened • Make and keep copies • If you allow inspection of ALL documents you give to ICE/DOL on site, keep agents away from employees • Get name, telephone and other business number, business card records of lead agent • Do not consent to ICE speaking to employees on premises -- ask them politely to stop

Deadlines for I-9 Completion • Section 1 must be completed by the employee at the time employment begins • Section 2 must be completed by the employer by the end of the third business day – Before employment begins if employment will be three days or less • Section 3 must be completed by the expiration date of the foreign national’s work authorization

Section 1 • Employee should complete Section 1 before work commences • Section 1 asks name, address, date of birth, Social Security number, and status • Employee must attest to accuracy of Section 1 information under penalty of perjury • Employee must sign and date • Use Preparer/Translator certification, if necessary • Employer can complete Section 1

Section 2 • We recommend employer complete Section 2 immediately after employee completes Section 1 • Employer completes Section 2 by examining the documents presented by the employee and recording the document numbers and expiration dates in the appropriate columns in Section 2 • Employer must examine original document -- not a photocopy

Rehired Employees • A new I-9 form need not be completed for persons re-hired within three years of completing a prior I-9 form • Instead, the employer can update the prior I-9 form by confirming that the employment eligibility document originally presented remains valid • If still valid, the employer merely records the re-hire date in Section 3, Item B of the form • The form must be retained based upon the new hire date

Reverification • If the employee's work authorization document expires, employer must reverify the employee’s right to work prior to the expiration of the current work authorization document • Only reverify on the basis of the document presented; ignore any expiration date in Section 1 • Failure to make a timely reverification is almost always construed as knowingly continuing the employment of an alien who lacks authorization to work

Reverification • Reverification is accomplished by examining a new work authorization document and completing Section 3, Item C of the form • The new document type, number, and expiration date (if any) should be recorded in Section 3 and the employer should sign and date Section 3 of the form • Reverification is not necessary for identity documents, U.S. passports, or Permanent Resident cards

Reverification • Maintain tickler file of employees with work authorization documents that expire • Remind employees of the need to obtain a new document at least 120 days prior to document expiration • Follow-up every 30 days with additional reminders • Put employee on unpaid leave or terminate if unable to produce new document before expiration of prior document • If new document has expiration date, put it in the tickler file

Receipt Rule • Under current rules, an employee who is unable to present a required document may present a receipt for a replacement document • Receipt authorizes work for 90 days from the date of the receipt or expiration of the prior document, whichever is later • DHS takes the position that an employee cannot use a receipt for a work permit renewal • At the end of the 90-day grace period, employee must present the actual document – We believe this could constitute document abuse discrimination – Better practice is to let the employee produce any document from the lists

Photocopy Rule • Copying of documents presented by the employee permitted but not required – Copies must be kept with I-9 form – Form must still be properly completed • Photocopies can be used to correct problems identified during a periodic self- audit or in advance of a government audit • We do not recommend making photocopies – instead, get it right the first time

Retention of I-9 Forms • I-9 forms must be retained for three years from the date work commences and for one year from the date employment terminates • If you do not meet both tests, do not throw out the form • This means an employer must have a form for every single current employee hired after November 6, 1986

Retention of I-9 Forms • Keep I-9 forms in files separate from employees’ personnel files, so that ICE/DOL does not obtain access to information in personnel files in the event of an audit • We recommend you keep current employee forms separate from terminated employee forms • Keeping I-9 forms separate makes it easier to pull them quickly in the event of an audit and easier to correct