Employment Authorization Hot Issues: ICE Subpoenas, Discrimination Claims, The New Form I 9, and E Verify

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1 TASPA Fall Support Staff Conference Employment Authorization Hot Issues: ICE Subpoenas, Discrimination Claims, The New Form I 9, and E Verify Robert F. Loughran rloughran@fosterquan.com September 29, 2014

2 New Form I 9: Introduced March 8, 2013

3 Form I 9: Section 1 To be completed by the employee only (or preparer/translator). Employee must complete on or before 1 st day of work. Employer must make sure Section 1 is timely/properly completed by the employee.

4 Form I 9: Section 1 1) Employee enters full name and other names used, if applicable. 2) Employee enters current address ) Employee enters his or her date of birth. The employee may choose to enter their address, telephone number, and Social Security number. Entering the Social Security number is optional unless the employer verifies employment authorization through the USCIS E Verify Program. 4) Employee reads warning and attests to his or her citizenship or immigration status ) Employee signs and dates the form. 6) If the employee uses a preparer or translator to fill out the form, that person must certify that he or she assisted the employee by completing this signature block.

5 Form I 9: Section 1 Preparer/Translator Certification Should only be completed when the employee is unable to complete. Preparer/translator completes Section 1, but employee must still sign above.

6 Form I 9: Section 1 Top Pitfalls 1. Employee does not sign and/or date. 2. More than one immigration status is checked. 3. Attestation section incomplete (i.e. Alien number not provided for Lawful Permanent Residents; expiration date and/or Alien number not provided for alien authorized to work, Foreign Passport number).

7 Form I 9: Section 2 Employer completes. Employer must examine evidence of identity and employment eligibility within 3 business days of the date the new employee begins work.

8 Form I 9: Section ) Employer completes full name of employee. 2) Employer records document title(s), issuing authority, document number, and the expiration date from original documents supplied by employee. 3) Employer enters date employment began. 4) Employer attests to examining the documents provided by filling out the signature block.

Form I 9: Section 2 Reviewing Documents Must see original, unexpired documents. Employer should not ask for specific documents or more documents than required.

9 Form I 9: Section 2 Reviewing Documents Must see original, unexpired documents. Employer should not ask for specific documents or more documents than required. Documents must reasonably appear to be genuine and relate to the individual. 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.

10 Form I 9: Section 2 Document Examples: Employment Authorization Card OLD EAD CARD NEW EAD CARD

11 New I 94 Card 1) Admission Number 2) Date Admitted 3) Visa Status 4) Length of Stay 5) Name 6) Date of Birth 7) Citizenship

12 Form I 9: Section 2 Document Examples: Permanent Resident Card Old PRC New PRC

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

14 Form I 9: Section 2 Top Pitfalls Over documentation (i.e., providing more documentation than required in List A, B, or C). Failure to provide document title, issuing authority, or expiration date. Failure to provide date of hire in certification section. Failing to include employee s name at the top of Section 2.

15 Form I 9: Section 3 Employer completes when Form I 9 needs to be updated or reverified. If renewal of U.S. work authorization, re verify on or before date previous work authorization expires.

16 Form I 9: Section 3 1) Record the employee s new name, if applicable, and date of rehire, if applicable. 2) Record the document title, number, and expiration date (if any) of document(s) presented. 3) Sign and date

17 Form I 9: Section 3 Common Pitfalls Failure of employer to complete prior to expiration of employee s work authorization. Sections 1 & 2 completed on new form. Employer attempts to re verify where green card has technically expired Not Required!

18 Rule 1: Form I 9 Retention Forms I 9 must be retained for all active employees. Rule 2: After termination, employer must retain Forms I 9 for: 3 years after hire date OR 1 year after termination WHICHEVER IS LATER Existing liability on a Form I 9 is retained following termination of the employee for so long as the Form I 9 is required to be retained.

19 Corrections to Historic Forms I 9 Under no circumstances should a Form I 9 ever be backdated or forged. These would be criminal violations. White out should never be used on a Form I 9.

20 Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) Common Triggers for OSC Involvement 1. Permanent Residents improperly required to present a permanent resident card. 2. Permanent Residents improperly reverified. 3. Acceptable I 9 documents presented but improperly rejected.

Office of Special Counsel (OSC) Technical Assistance Letters and Investigations Technical Assistance Letter (12/30/2013): An employer should not request to see originally presented documents or

21 Office of Special Counsel (OSC) Technical Assistance Letters and Investigations Technical Assistance Letter (12/30/2013): An employer should not request to see originally presented documents or alternative documents solely because photocopies are unclear or where documents originally presented were not photocopied. Moreover, requesting such documents on the basis of citizenship status or national origin may violate the antidiscrimination provision of the INA. Massachusetts Staffing Agency Hiring Discrimination Settlement (1/23/2014): The department s investigation found that SD Staffing required work authorized non U.S. citizens to produce specific documents in connection with SD Staffing s use of the E Verify program. Employers cannot create discriminatory hurdles for work authorized non U.S. citizens in the employment eligibility verification process, which includes the E Verify program.

22 E Verify is a government sponsored program that allows employers to verify the work documents of prospective employees. The E Verify program is becoming more prevalent: Federal Contracts: Currently all federal contractors must verify the employment authorization of any employee working on a federal work site. State Laws: State laws continue to be passed requiring varying levels of E Verify participation. RIDE Program: USCIS recently launched Records and Information from DMVs for E Verify (RIDE) program, a new feature which allows USCIS s E Verify program to validate the authenticity of Mississippi, Florida, Iowa, and Idaho driver s licenses used by employees as Form I 9 identity documents. We believe more states will quickly follow suit.

23 Most employees are automatically confirmed as work authorized. (Fiscal Year 2013) percent of employees are automatically confirmed as authorized to work ( work authorized ) either instantly or within 24 hours, requiring no employee or employer action percent of employees receive initial system mismatches, called a Tentative Non Confirmation (TNC) percent of employees receive initial mismatches and do not contest the mismatch.

24 3 Step Process: 1) Create a Case Complete Form I 9 Enter information into E Verify 2) Get Results Tentative Non Confirmation DHS Verification in Process Employment Authorized 3) Close the Case Final Non Confirmation Employment Authorized

25 SSA Tentative Non Confirmation SSA Tentative Non Confirmation The Social Security Administration will issue a TNC when it finds discrepancies between information provided by the employee and information in the SSA database E Verify can issue false positive TNCs The most common being: Transposed or mistyped Social Security Number Transposed or mistyped name Failure to update SSA with name change information (i.e. marriage)

26 ICE Initiated Form I 9 Investigations, Notices of Inspection, and Audits Notice of Inspection Must respond within three (3) days, or ask for a discretionary extension Immediately contact your HR Manager or Immigration Attorney. Collect the names of all HSI/ICE Officers in charge.

27 Notices of Technical Violations and Notice of Suspect Documents Notice of Technical Violations Suspect Documents Must address allegation of suspect document(s) with each employee listed in Notice Due to possible workforce loss, consider beginning interviewing replacement workers as early as possible. ICE is required to provide company at least ten (10) days to make mitigations Technical violations include missing address information, company name, employer title, etc. Substantive violations no additional time by ICE to mitigate, includes failure to sign, complete Sec 2 etc.

28 Questions Robert F. Loughran

Form I-9. Employment Eligibility Verification

Form I-9. Employment Eligibility Verification Employment Eligibility Verification March 2014 AGENDA Background Completing Storage and Retention and E-Verify Resources 2 March 2014 Background In 1986, in an effort to control illegal immigration, Congress