ICE Storm Warning How to Prepare for an I-9 Inspection

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1 ICE Storm Warning How to Prepare for an I-9 Inspection Clara DeMatteis Mager (313) Linda J. Armstrong t (313)

2 You are welcome to submit questions throughout h t the presentation ti 1. In the top toolbar, click Q&A button to open the Questions and Answers pane. 2. Type a question, then click Ask. 3. There is no need to use the Raise your hand icon. 4. Presenters will answer questions at the end of the program, as time allows.

Linda J. Armstrong is a shareholder practicing in Butzel Long s Detroit office. Ms. Armstrong is listed in The Best Lawyers in America (Immigration Law).

Armstrong concentrates her practice in the area of business and family immigration law, including all aspects involved with the international movement of personnel; immigration consequences of

immigrant and nonimmigrant matters; and labor certification. Ms.

3 Linda J. Armstrong is a shareholder practicing in Butzel Long s Detroit office. Ms. Armstrong is listed in The Best Lawyers in America (Immigration Law). Shareholder Detroit Tel Fax armstrong@but zel.com Ms. Armstrong concentrates her practice in the area of business and family immigration law, including all aspects involved with the international movement of personnel; immigration consequences of corporate restructuring, mergers and acquisitions; i i employer and workplace compliance issues, including I-9 and H-1B public access file investigations; inbound and outbound work-authorized immigrant and nonimmigrant matters; and labor certification. Ms. Armstrong is a member of the Firm's Pro Bono Committee and the Firm's Global Automotive Industry Group. Ms. Armstrong provides on-site training to business clients on numerous topics, including US nonimmigrant visas; US permanent resident processing; employer compliance issues, including I-9 completion and compliance and H- 1B public access file compliance; and outbound general strategic planning. Ms. Armstrong is a frequent speaker on business immigration to professional and business organizations, including the International Law Section of the State Bar of Michigan, SHRM, and Datatel (DUG) Users Group. Ms. Armstrong is a member of the American Bar Association; State Bar of Michigan: International Law Section, Council Member; State Bar of Michigan: International Law Section, Immigration Committee - past Co-Chair; Detroit Metropolitan Bar Association; American Immigration Lawyers Association (AILA); AILA Michigan Chapter; and AILA Michigan Chapter: Department of Labor Liaison - past Member.

4 Background Information USICE issued initiative to inspect employers hiring records Focus of inspection has changed from the employee to the employer In the last 12 months, over 2700 audits have been completed Government agencies are now sharing information

5 What should employers do to prepare for ICE Inspection? Establish a written compliance policy Appoint a compliance officer Provide training to hiring managers Conduct self-audits

6 Overview: Completing Form I-9 Employee accepts offer for employment Employee completes Section 1 of the form no later than first day of work for pay Employee gives documents and form to employer Employercompletes Section 2 of the form no later than the 3 rd business day employee starts work for pay If Employee s work authorization expires, complete Section 3

7 Section 1

8 Completing Form I-9 Section 2, Employer Review and Verification Must be completed within 3 business days of hire Monday First day of work Employee completes Section 1 Tuesday Wednesday Thursday I-9 Due Employer completes Section 2

9 Completing Form I-9 Examine one document from List A OR Examine one document from List B and one from List C, and record the title, number and expiration date, of any, of the document(s) List A Documents that establish both identity and employment authorization OR List B Documents that establish identity List C Documents that establish employment authorization Employers CANNOT specify which document(s) they will accept from an employee

10 Section 2

11 List A United States Passport or US Passport Card Permanent Resident Card or Alien Registration Receipt Card (I-551) Unexpired foreign passport with a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa Employment Authorization i Document that contains a photo (I-766) Unexpired foreign passport p with an unexpired Form I-94 authorizing employment and containing the foreign national s nonimmigrant status Passport from Federated States of Micronesia or the Republic of the Marshall Islands with Form I-94

12 List B Driver s license issued by a state or outlying U.S. possession with photo ID card issued by a state or outlying possession School ID card with photo Voter registration card U.S. Military card or draft record Military dependent s ID card U.S. Coast Guard Merchant Mariner Card Native American tribal document Canadian driver s license or ID card with a photograph p

13 List C Social Security card without employment restrictions Certificate of Birth Abroad issued by U.S. Department of State Certificate of Report of Birth issued by Department of State U.S. Birth Certificate U.S. Citizen ID Card ID Card for Use of Resident Citizen in the US (I-179) Native American tribal document Unexpired employment authorization document issued by Department of Homeland Security

14 Updating and Re-verifying Form I-9 Employers must complete Section 3 when updating and/or re-verifying the I-9 Form Employers must re-verify employment eligibility of their employees on or before the expiration date recorded in Section 1 (based on I-94 Card, Employment Authorization Document, etc.) Do not need to re-verify Green Cards with Expiration i dates (even Conditional i Permanent Residents)

15 Section 3

Retaining Form I-9 Employers must retain completed I-9s for three (3)

ends, whichever is later To calculate how long to keep an employee s

Date the employee began work for pay A. Add three years to that date B.

16 Retaining Form I-9 Employers must retain completed I-9s for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later To calculate how long to keep an employee s Form I-9, enter the following: 1. Date the employee began work for pay A. Add three years to that date B. Add one year to that t date 2. Date employment was terminated Which date is later: A or B? C. Enter the later date

17 Electronic Storage and Completion of I-9s Permitted Must have reasonable controls to ensure the following: Integrity, accuracy and reliability of system Prevention and ddetection of unauthorized creation or deletion of information Must also have: Inspection and quality assurance program Retrieval system that includes an indexing system Ability to reproduce legible and readable hard copies Ability to produce audit trails Electronic signatures, if completed electronically

18 Common Problems Employee/employer fails to sign Form I-9 Employer completes Section 1 for employee Employer fails to note document numbers and expiration dates in Section 2 Employer fails to complete Section 2 of Form I-9 and merely attaches photocopies of acceptable documents to the form Form I-9 is not completed on a timely basis Employer requests specific documents evidencing identity and/or employment eligibility Employer fails to request original documents and accepts photocopies or faxed documents Form I-9 is discarded too soon Failure to re-verify when necessary

19 Summary Make I-9s a priority Provide training to hiring personnel Conduct a self-audit of your I-9s Take action to correct I-9s as soon as possible Make sure you are retaining I-9s as required

20 ICE Inspections Clara Mager

Clara DeMatteis Mager Clara DeMatteis Mager is a shareholder based in Butzel Long s Detroit office and the Practice Group Manager of the firm s Immigration Group. Ms.

and immigrant (permanent) status, immigration consequences of mergers, acquisitions and corporate restructuring, employer sanctions, and immigration law audits (e.g. labor condition applications and I-9).

Shareholder Detroit Tel 313 225 7077 Fax 313 225 7080 Email mager@butzel.com Ms.

21 Clara DeMatteis Mager Clara DeMatteis Mager is a shareholder based in Butzel Long s Detroit office and the Practice Group Manager of the firm s Immigration Group. Ms. Mager focuses her practice on business and family immigration issues including all aspects of the international movement of personnel, inbound nd and outbound workauthorized nonimmigrant (temporary) and immigrant (permanent) status, immigration consequences of mergers, acquisitions and corporate restructuring, employer sanctions, and immigration law audits (e.g. labor condition applications and I-9). Ms. Mager serves on the Firm s Strategic Planning Committee, is the Chairperson of the Firm s Diversity and Retention Committee, and is a member of the Firm s Global Automotive Industry Group. Shareholder Detroit Tel Fax mager@butzel.com Ms. Mager is a frequent speaker on business immigration to professional, educational and business organizations including Wayne State University Law School, International Law Section of the State Bar of Michigan, French American Chamber of Commerce, The German American Chamber of Commerce, Japan PAK, and APROMEX. She also provides training sessions to business clients on numerous topics including U.S. nonimmigrant visas, U.S. permanent resident processing and strategy building to streamline the process, Form I-9 completion and compliance training, outbound non-u.s. immigration general strategic planning, and workplace compliance related to immigration. Ms. Mager is a member the American Immigration Lawyers Association (AILA), American Bar Association, Federal Bar Association (previous member of the Leadership Council of the Immigration Committee), State Bar of Michigan (Past Chairperson of the International Law Section and previously held positions of Chair-elect, Secretary, Treasurer, Council Member and Chairperson of the Immigration Committee), Women Lawyers Bar Association and Italian a American Bar Association o (Board Member). She is also active in Lex Mundi's Immigration Group (Regional Chair and former Chairperson), the J.D./L.L.B. Advisory Board, University of Detroit Mercy School of Law/University of Windsor Faculty of Law (Board Member and past Chair), and the Italian American Alliance for Business and Technology (Board Member). Ms. Mager is a graduate of the Detroit Regional Chamber of Commerce Leadership Detroit XXII Class. She is listed in The Best Lawyers in America (Immigration) and Michigan Super Lawyers (Immigration). Ms. Mager is a Martindale- Hubbell featured AV Peer Review Rated Lawyer.

22 ICE & DOL ICE Office of Investigations Over 7,000 employees field offices throughout the U.S. 5,000 employees are Special Agents U.S. Department of Labor Audits Compliance officers from Wage & Hour Compliance Program Equal Opportunity Specialists, Office of Federal Contract Compliance Program

23 Form I-9 Inspection Process Notice of Inspection (NOI) Inspect Forms I-9 Notice of Suspect Documents Notice of Discrepancies Violations No Compliance Yes Substantive Violations Technical Violations Warning Notice Notice of Intent to Fine (NIF) Settlement OCAHO Hearing

24 Notice of Inspection (NOI) Served in person or certified mail Must provide at least 3 days notice Receipt provided by ICE for the original Form I-9s turned over to ICE Subpoena to produce other documents ICE verifies Social Security Numbers and Alien Registration Numbers If in compliance ICE issues a Compliance Letter

25 Notice of Suspect Documents Notice to employer that: Documents submitted pertain to other individuals; or There was no record of the alien registration number; or Individual s id employment authorization ti has expired Requires employees to present valid ID & employment authorization documentation ICE will re-verify the documents provided by the employees

26 Technical or Procedural Violations Notice of Technical or Procedural Violations: ICE provides copies of Form I-9s highlighting Technical or Procedural violations 10 business days to make corrections Initial i and date the corrections Provide explanation for corrections which cannot be reasonably made Uncorrected technical or procedural violations become substantive violations

27 Technical Violations List of Technical Verification Violations: Use of the Spanish version of the I-9 form, except in Puerto Rico Failure of the employee to list his or her maiden name, address, or birth date in Section 1 Failure of the employee to include his or her "A" number if the box is checked in Section 1 indicating he or she is a permanent resident (but only if the A number is included in Section 2 or on a copy of a document retained with the I-9)

28 Technical Violations Failure of the employee to include his or her "A" number or admission number if the box is checked in Section 1 indicating that he or she is an alien authorized to work in the United States (but only if the number is included in Section 2 or on a copy of a document retained with the I-9) Failure to ensure that the employee dates Section 1 of the Form I-9 at the time employment begins Failure of the form's preparer or translator to print his or her name, address, signature or date in the preparer's certification box

29 Technical Violations Failure of the employer to provide the document title, ID number, or expiration date of a List A document or a List B and List C document in Section 2 (but only if a legible copy of the document is retained with the I-9) Failure of the employer to provide the title, business name, and business address in Section 2 Failure to provide the date employment begins in Section 2 Failure to date Section 2 of the I-9 form within three business days of the date the individual id begins employment or, if the individual is employed for three business days or less, at the time employment begins

30 Technical Violations Failure to state "Individual under age 18" in Colum B, for employees under the age of 18 using only a List C document Failure to state t "Special Placement" in Colum B, for employees with a disability using only a List C document Failure of the employer to provide the document title, t ID number, or expiration date of a List A or List C document in Section 3 when re-verification is required (but only if a legible copy of the document is retained with the I-9) Failure to provide the date of rehire in Section 3

31 Substantive Violations Substantive Violations Knowing hire, continuing to employ, failure to prepare p and present Form I-9 Serious paperwork violations that could have led to hiring of an unauthorized alien

32 Substantive Violations Substantive Verification Violations: Failure to timely prepare or present the I-9 form Failure of the employee to provide his or her printed name in Section 1 Failure of the employee to check one of the boxes in Section 1 indicating his or her citizenship or immigration status Failure of the employee to include his or her "A" number if the box is checked in Section 1 indicating he or she is a permanent resident (but only if the A number is not included in Section 2 or on a copy of a document retained with the I-9)

33 Substantive Violations Failure of the employee to include his or her "A" number or admission number if the box is checked in Section 1 indicating that he or she is an alien authorized to work in the United States (but only if the number is not included in Section 2 or on a copy of a document retained with the I-9) Failure of the employee to sign Section 1 Failure of the employer to review and verify either a List A document or a List B and List C document in Section 2

34 Substantive Violations Failure to sign the attestation in Section 2 of the I-9 form Failure on the part of the employer of authorized representative to print their name in the attestation portion of Section 2 Failure to date Section 2 of the I-9 form Failure to recertify and complete within 90 days the pertinent Section 2 information for verification with a receipt for lost or stolen documents

35 Substantive Violations Failure of the employer to provide the document title, ID number, or expiration date of a List A document or a List B and List C document in Section 2 (but only if a legible copy of the document is not retained with the I-9) Failure of the employer to review and verify either a List A document or a List B and List C document in Section 3 when reverification is required Failure of the employer to provide the document title, ID number, or expiration date of a List A or List C document in Section 3 when re-verification is required (but only if a legible copy of the document is not retained with the I-9)

36 Substantive Violations Failure to sign Section 3 of the I-9 form Failure to date Section 3 of the I-9, and/or failure to date Section 3 of the I-9 not later than the date that the work authorization ti of the individual id hired expires

37 Warning Notice Warning Notice (Form I-846): Circumstances do not warrant penalty Expectation of future compliance by employer Follow up inspection within 6 months

38 Notice of Intent to Fine Notice of Intent to Fine (NIF) (Form I-763): Pre-notice negotiations Problem areas identified Negotiation may lead to final settlement without issuance of NIF

39 Notice of Intent to Fine Issuance of NIF: Employer must review the allegations Ascertain sections of law violated Determine if there is a reasonable defense Review merits of the case and whether to litigate Employer may enter into settlement agreement 30 day response period or to contest NIF Proposed fines are maximum potential liability Administrative Law Judge can reduce the proposed fines but will not raise it

40 Paperwork Violations Penalties $110 - $1,100 per form Amount of fine depends on following: Size of business Employers good faith in completing I-9 Seriousness of violation Employment of unauthorized aliens Employer s history No criminal penalties

41 Substantive/Uncorrected Technical Violation i Fine Schedule Standard Fine Amount Substantive 1 st Offense 2 nd Offense 3 rd Offense Verification $110 - $1,100 $110 - $1,100 $110 - $1,100 Violations 0%-9% $110 $550 10%-19% $275 $650 20%-29% $440 $750 30%-39% % $605 $850 40%-49% $770 $950 50% or more $935 $1,100

42 Unauthorized Employment of Alien Penalties First violation $375-$3,200 $3,200 per violation Second violation $3,200-$6,500 per violation Third violation $4, $16,000 per violation Criminal prosecution with $3,000 fine per employee and/or six months jail if pattern or practice established

43 Knowing Hire/Continuing to Employ Fine Schedule (for violations occurring on or after 3/27/2008) Standard d Fine Amount Knowing Hire First Tier Second Tier Third Tier and Continuing $375-$3,200 $3,200-$6,500 $4,300-$16,000 to Employ Violations 0%-9% $375 $3,200 $4,300 10%-19% $845 $3,750 $6,250 20%-29% $1,315 $4,300 $8,200 30%-39% $1,785 $4,850 $10,150 40%-49% $2,255 $5,400 $12,100 50% or more $2,725 $5,950 $14,050

44 Summary Have counsel from the beginning of the inspection process Review and copy all Form I-9s and other documents provided to ICE Cooperate fully with ICE

45 You are welcome to submit questions throughout h t the presentation ti 1. In the top toolbar, click Q&A button to open the Questions and Answers pane. 2. Type a question, then click Ask. 3. There is no need to use the Raise your hand icon. 4. Presenters will answer questions at the end of the program, as time allows.

46 Questions? Clara DeMatteis Mager (313) Linda J. Armstrong (313)

I-9 Process GuIde Alka Bahal, Esq.

I-9 Process GuIde Alka Bahal, Esq. Alka Bahal, Esq. Partner & Co-Chair, Corporate Immigration Practice Direct: 973.994.7800 Fax: 973.992.1653 immigration@foxrothschild.com Table of Contents Introduction...3 Procedures...4 Section 1: Employee...4