Skeletons in the Closet: Dusting Off Form I 9 & E Verify Compliance

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1 Skeletons in the Closet: Dusting Off Form I 9 & E Verify Compliance July 10, 2014 Avalyn C. Langemeier alangemeier@fosterquan.com Susan K. McConn smcconn@fosterquan.com

2 Disclaimer These presentations are made available by FosterQuan, LLP for informational purposes only and do not constitute legal advice. The information on these presentations may not reflect the most current legal developments, regulations, statutes, acts, codes, case law, verdicts or settlements and should not be considered an indication of future results. Copyright Materials The presentations contained herein are protected by US and International copyright laws. Reproduction, distribution, display and use of these materials without the express permission of FosterQuan, LLP is prohibited.

3 Webinar Highlights Form I 9 E Verify Updates Discrimination and OSC Issues Compliance Employer Sanctions

Form I 9 Basics Required of ALL U.S. employees hired after November 6, 1986. Section 1: Employee attests to personal information and citizenship status on or before first day of work for pay.

4 Form I 9 Basics Required of ALL U.S. employees hired after November 6, Section 1: Employee attests to personal information and citizenship status on or before first day of work for pay. Section 2: Employer verifies identity and employment eligibility of employee within 3 business days. Section 3: Employer must re verify employment authorization when required on or before the expiration of previous work authorization. Current version of form (Ver. 03/08/2013 now 2 pages) must be used for initial and any subsequent verification required.

5 Onboarding Procedures Form I 9 is to be completed only once an offer has been accepted; cannot be used to discriminate against applicants. If Section 1 is pre populated or completed by someone other than the employee, the preparer/translator section must be timely completed. An agent of the employer may complete Section 2 if necessary (i.e. remote hire scenario); however, the employer remains liable for any violations. E Verify used only after Form I 9 is completed; does not replace employer s verification obligations.

Employer should not ask for specific documents or more documents than required.

6 Form I 9: Section 2 Reviewing Documents Employer must see original document(s). Documents must be valid; cannot be expired. Employer should not ask for specific documents or more documents than required. Documents must reasonably appear to be genuine and relate to the employee. Documents containing misspellings, deletions or signs of tampering should be considered suspect. If copies are retained, they must be kept with Form I 9; be consistent.

7 List of Acceptable Documents

8 Form I 9: Section 2 List A Document Examples: Permanent Resident Card (PRC) Old PRC New PRC

Form I 94. (Visit website at www.cbp.gov/i94 to print I 94.

9 Form I 9: Section 2 List A Document Examples: Form I 94 The most common documents a nonimmigrant will present are the following List A document combination: 1. Foreign passport; AND, 2. Form I 94. (Visit website at to print I 94.) Form I 94 must indicate a proper work authorized status (ex: H 1B, L 1, TN). B 1/B 2 and Visa Waiver (ESTA) Visitors are NOT authorized to work.

Form I 9: Section 2 List A Document Examples: F 1 Students Working Off Campus or on Curricular Practical Training (CPT) The following valid documents can

10 Form I 9: Section 2 List A Document Examples: F 1 Students Working Off Campus or on Curricular Practical Training (CPT) The following valid documents can be presented as an acceptable List A combination: 1. Foreign passport; 2. Form I 94; AND, 3. Form I 20 endorsed by school for off campus or CPT employment.

11 Form I 9: Section 2 List A Document Examples: Employment Authorization Card (EAD, Form I 766) OLD EAD CARD NEW EAD CARD

12 Deferred Action for Childhood Arrivals (DACA) Deferred action for applicants who: Entered the U.S. before age 16; Were under 31 years old as of June 15, 2012; Physically present in the U.S. on June 15, 2012, and at time of filing DACA application; Continuously resided in the U.S. from June 15, 2007 to present; Currently attending school, graduated from high school or obtained a GED, or honorably discharged veteran of U.S. Coast Guard or U.S. military; Entered the U.S. without inspection before June 15, 2012, or lawful immigration status expired by June 15, 2012; and Have not been convicted of a felony offense, significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety. Can obtain employment authorization document (EAD, Form I 766) if at least 15 years old. May be time to file application for new EAD if document is expiring.

13 Form I 9: Section 2 List C Document Examples: Annotated Social Security Card Annotated Social Security Cards are NOT acceptable as List C Documents.

14 Receipts General Rule: Receipts are not generally acceptable for I 9 purposes. Receipt demonstrating employee has applied to extend Employment Authorization Document is not a valid I 9 document (with limited exceptions). Main Exception: Employer can accept a receipt for replacement of a lost, stolen, or damaged document. Employer must calendar and review original document within 90 days, and update I 9 accordingly.

15 Example: Acceptable Receipt

16 H 1B Cap Gap Rule Employment authorization of an F 1 student continues through September 30 so long as the H 1B change of status petition was timely filed before the EAD card expired, and the petition was not denied, rejected or revoked. If the EAD has expired and the H 1B petition remains pending on October 1, then the student must not work as of October 1. Consult an immigration attorney for travel restrictions during this capgap period. Updating Form I 9 if the F 1 student is already employed on OPT: The Employer completes Section 3 of Form I 9. Record the Form I 20 (document title, document number, expiration date), and sign, date and print name. Upon receipt of the H 1B Approval Notice, Form I 797, the Employer completes another Section 3 re verification with the I 94 document information.

17 F 1 OPT STEM Extension A one time 17 month OPT STEM extension is available to F 1 OPT students who earned a bachelor s, master s or doctoral degree in a designated science, technology, engineering or math field (STEM) and will work for an employer enrolled in E Verify. May change employers, but any employer must be enrolled in E Verify. Student can work until USCIS makes a decision on STEM extension if timely filed before initial OPT EAD expires, but not more than 180 days from the expiration date of initial EAD. To complete the Form I 9 for STEM extensions, employer must complete: Section 2 (for new hires): In List A, record expired EAD and Form I 20 endorsed by the DSO recommending the STEM extension. Reverify employment authorization using Section 3 no later than 180 days from the expiration date of the previous EAD. Section 3 (for current employees): Record Form I 20 endorsed by the DSO recommending the STEM extension. Reverify employment authorization no later than 180 days from the expiration date of the previous EAD.

18 Form I 9 Basics: Retention Rule Retain Form I 9 for all current employees. For terminated employees, retain Form I 9 for longer of 3 years from date of hire, or 1 year from date of termination

gov/files/form/m 274.pdf. Describes changes to Form I 9.

19 Handbook for Employers M 274 Handbook for Employers: Guidance for Completing Form I 9 is available online: pdf. Describes changes to Form I 9. Provides more detailed instructions. Contains pictures of sample documents.

20 Latest Updates: E Verify More states, cities and counties are enacting mandatory E Verify requirements on public and private employers of all sizes. State laws are subject to change. New Memorandum of Understanding (MOU) clarifies and updates user responsibilities. Duplicate Case Alert will notify users when a case contains the same SSN as an existing case submitted within last 30 days. Updated Further Action Notices for Web Services users. Users must validate/update their and phone number when their password expires to help ensure E Verify has current contact information.

Latest Updates: The SAVE Program The Systematic Alien Verification for Entitlements (SAVE) Program is a web based service that helps federal, state and local benefit issuing

Promotes automated status review, taking immigration status verification out of the hands of local agency representatives.

21 Latest Updates: The SAVE Program The Systematic Alien Verification for Entitlements (SAVE) Program is a web based service that helps federal, state and local benefit issuing agencies, institutions and licensing agencies determine the immigration status of applicants. Promotes automated status review, taking immigration status verification out of the hands of local agency representatives. Includes tiered process for status verification when immediate confirmations are unavailable. Result: Expect delays in applying for and renewing benefits, including driver s licenses in most states. Take Away: More driver s license issues for temporary workers, including those with pending permanent resident cases.

U.S. Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices Investigates & prosecutes allegations of discrimination.

22 U.S. Office of Special Counsel (OSC) for Immigration Related Unfair Employment Practices Investigates & prosecutes allegations of discrimination. Federal law prohibits discrimination based on Citizenship/Immigration status. National origin discrimination. Document abuse during Form I 9 employment eligibility verification. Retaliation or intimidation. When verifying employment eligibility, do not request more or different documents than required, reject reasonably genuine looking documents, or request certain documents. Do not use E Verify or Self Check to pre screen employees. Unlawful discrimination may result in back pay, reinstatement and/or civil penalty of $375 $16,000 per violation.

Build and Maintain a Culture of Compliance Within Your Company Audit Public Access Files, Forms I 9, and verification policies before an investigation.

23 Build and Maintain a Culture of Compliance Within Your Company Audit Public Access Files, Forms I 9, and verification policies before an investigation. More weight is given to mitigation and compliance efforts made before being on ICE s/hsi s radar. Centrally store appropriate files for quick access, and audit periodically for accuracy. Most government investigations provide only up to 3 days to surrender original documents requested (Notice of Inspection). Stay abreast of the latest in enforcement actions. Frequently train all personnel on compliance issues. Draft, review and enforce a compliance policy.

Hot Topics for a Compliance Policy A compliance policy should focus on, at minimum: New hire onboarding (including work visas if needed) Form I 9 verification, expiration, and retention

24 Hot Topics for a Compliance Policy A compliance policy should focus on, at minimum: New hire onboarding (including work visas if needed) Form I 9 verification, expiration, and retention E Verify submissions and nonconfirmation procedures Internal and external audit guidelines Action plan for site visits Social Security Number mismatches Fraud/honesty Anti discrimination

Warnings for Form I 9 Audits and Software Seek experienced immigration counsel when conducting an internal audit, selecting a Form I 9 software program, conducting an external audit, or responding to

25 Warnings for Form I 9 Audits and Software Seek experienced immigration counsel when conducting an internal audit, selecting a Form I 9 software program, conducting an external audit, or responding to an ICE/HSI Notice of Inspection. Use of Form I 9 Software and/or enrollment in E Verify are not safe harbors from employer sanctions. ICE has prosecuted employers for deficiencies in their Form I 9 Software, including poor audit trails. OSC has fined employers for discriminatory use of the Form I 9, Form I 9 Software, and E Verify.

Employer Sanctions POSSIBLE PENALTIES: Civil, Administrative and Criminal Fines. Incarceration. Debarment. FINES for PAPERWORK VIOLATIONS: $110 to $1,100 per individual.

26 Employer Sanctions POSSIBLE PENALTIES: Civil, Administrative and Criminal Fines. Incarceration. Debarment. FINES for PAPERWORK VIOLATIONS: $110 to $1,100 per individual. Factors considered in assessing fines: Size of Employer; Good Faith (or Bad Faith) of Employer; Seriousness of Violations; History of Violations; and Unauthorized Workers. POSSIBLE CRIMINAL CHARGES: Knowingly hiring or continuing to employ an unauthorized worker; Harboring; Conspiracy to harbor; Aiding & abetting document fraud; Aiding & abetting identity theft; Conspiracy, etc. Take Away: Retain experienced immigration and criminal counsel if any of these allegations arise.

27 For more information, or if you have any questions, please contact us directly. Avalyn C. Langemeier Susan K. McConn

28 About FosterQuan FosterQuan, LLP is the world's largest minority owned immigration law firm. We are dedicated to providing comprehensive immigration services, from employment based visas to employer compliance and strategy. The firm has the experience, resources and knowledge to address the most complex immigration challenges facing global employers, investors, and individuals. We are committed to providing responsive, personalized services and appreciate the opportunity to assist you. For further information, please contact your FosterQuan, LLP attorney or

Immigration Tsunami: Understanding the Tidal Wave of Compliance When Hiring Foreign Nationals. Wendy Padilla-Madden

Immigration Tsunami: Understanding the Tidal Wave of Compliance When Hiring Foreign Nationals Wendy Padilla-Madden wmadden@bakerdonelson.com Immigration Status of Employees USC and LPR Includes Conditional