I-9 Compliance, Audits, and E- Verify
Presenter Kim Kiel Thompson, Esq. Chair of Global Immigration Practice Group Co-Chair of International Employment Practice Group University of Miami School of Law, J.D., 1989
Enforcement April 2009, Department of Homeland Security (DHS) issued worksite enforcement guidelines for Immigration Customs & Enforcement (ICE). Shift of focus from illegal foreign worker to employer. Encouraging use of E-Verify.
Audits/Inspections I-9 Audits/Notices of Inspection (NOI): Over 2500 since July 2009. Most recent November 2011 500+ Notices of Intent to Fine issued for $2.3 million. Source of Revenue for ICE.
I-9 Form Use correct version of I-9 Form. Both 2/2/09 and 8/7/09 versions acceptable. Employers who do not use the correct version subject to civil money penalties. I-9 Form can be downloaded at www.uscis.gov. Only use Spanish version in Puerto Rico. Only use CNMI version in CNMI.
I-9 Form Requirements Every current employee hired after November 6, 1986 must have I-9 Form. Section 1 must be completed by employee no later than start date. Section 2 must be completed by employer no later than 3 business days after start date.
Section 1 Form I-9
Section 2 Form I-9
Section 2 - Documents Certify that the documents: reasonably appear to be genuine; relate to the individual; and authorize the individual to work Documents examined must be originals not photocopies.
Document Genuine?
Document Relates to Person?
Document Acceptable List B?
Document Acceptable List C?
PERMANENT RESIDENT CARD
Social Security Card
Unacceptable Social Security Card
Re-verifying/Updating If employee s authorization to work in U.S. will expire reverify. If rehire employee within 3 years of original hire date may reverify use current version of Form I-9. If employment authorization document originally presented is still valid, no need to review document.
Photocopy Rule May Photocopy Section 2 documents, but not required. Ensure consistent photocopy policy. Merely photocopying Section 2 documents not sufficient for I-9 requirements must also fill in form. Photocopies of documents may assist during I-9 self-audit.
Retention Requirements For terminated employee, must retain I-9 form until later date of the following dates reached: Three years from start date; and One year from termination. When later date reached, I-9 form may be purged/destroyed.
IRCA Prohibited Acts Cannot: knowingly hire an individual who is not authorized to work; Hire an individual without verifying identity and work authorization; Continue to employ person if know or should know the person is not authorized to work.
Anti-Discrimination Provisions Cannot discriminate on the basis of: Citizenship status; Immigration status; National origin Cannot retaliate against someone who files a discrimination charge or asserts rights under the law.
Unfair Documentary Practices Do not: Require specific documents or combination of documents; Require more or different documents than minimally required; Refuse to accept documents that reasonably appear to be genuine and authorize employment. DO allow employee to choose which Form I-9 documents he/she presents.
Common I-9 Form Errors No status box checked in Section 1. No start date listed in Section 2 Certification Box. No issuing authority listed for Section 2 documents. Too many/too few documents listed in Section 2. Document information listed under incorrect List.
Things to Remember Do not: reverify expiring U.S. Passport, U.S. Passport Card, Permanent Resident Card or List B Identity Document; Do not accept document that has expired; Do not allow an individual who checks the An alien authorized to Work to work beyond expiration date.
I-9 Audits Conduct regular self I-9 audits. Provide training on proper I-9 completion to employees. Make corrections as allowed by law. Know your rights regarding ICE I-9 Audits. Purge I-9 forms for terminated employees that have met retention dates. Keep I-9 forms in separate binders not personnel files.
What Could Trigger Audit? Targeted Industry (hospitality, transportation, construction). Leads, tips, complaints. Investigation already in process. Random audit. Public safety/health concern.
ICE Notice of Inspection ICE presents NOI (may have subpoena). Allowed 3 business days to produce I-9 forms for inspection. Required to produce original I- 9 forms or in electronic format. May be asked to give testimony.
What Will Be Inspected? I-9 forms for current employees hired after Nov. 6, 1986. Electronic employee listing. Quarterly wage and hour reports. Payroll data. SSA Mismatch correspondence. E-Verify and SSNVS documents. Business owner information.
Results of I-9 Audit Notice of Technical/Substantive Errors. Notice of Suspect Documents. Notice of Compliance. Notice of Intent to Fine. Appeal Options.
Search Warrant No 3 day notice required. When warrant served, ensure timely and proper. Monitor search but do not interfere. Notify management and legal counsel immediately. Keep track of what is seized/taken.
Penalties for I-9 Violations Uncorrected Errors on Forms - $110 to $1100 per violation. Missing I-9 Form or Knowing hiring or continuing to employ unauthorized worker $375 to $3200 per unauthorized worker for first investigation; $3200 to $6500 per unauthorized worker for second investigation; $4300 to $16000 per unauthorized work for subsequent investigations.
Determining Penalty Amounts Factors Considered for Enhancement or mitigation of fines: Good faith effort to comply; Seriousness of violation; Whether the violation involved unauthorized workers; Size of business; History of previous violations.
Criminal Penalties Criminal sanctions for conspiracy to harbor, smuggle, conceal or transport. Jail sentences and monetary fines. Pattern and practice of violations.
E-Verify Voluntary enrollment unless required to use it by state or federal law. Only for use for new hires or re-hires (unless required to use E-Verify as federal contractor). Cannot be used to pre-screen employees. E-Verify self check. Does not catch identity fraud.
E-Verify Notice to Employees
E-Verify Notice of Rights
E-Verify Submitting a Query I-9 Form Process completed first. Information from I-9 Form entered into E- Verify System: Name, Social Security number, date of birth, hire date and Section 2 document information. Submit query no earlier that start date but no later than third day after employee starts work.
E-Verify Photo Match After query submitted, photo match screen appears if employee presented: U.S. Passport or Passport Card Permanent Resident Card (I-551) Employment Authorization Card (I-766) Certain State Issued Driver s Licenses Must make copy of these documents, if presented and retain with I-9 form and E- Verify documents.
Photo Match Compare document or photocopy of document to E-Verify screenshot. Photo on screenshot should match exactly the photo on document presented with minor variations in shading.
E-Verify Query Results Employment Authorized. SSA Tentative Nonconfirmation. DHS Tentative Nonconfirmation. DHS Verification in Process.
Tentative Nonconfirmation Promptly notify employee of TNC. Print Notice of TNC. Employee must opt to Contest or Not Contest and sign Notice. Contest Initiate referral to SSA or DHS. Not Contest Terminate Employment. Employer must sign notice and keep original with I-9 Form and E-Verify results.
Referral to SSA or DHS Employee Contests and Referral Initiated. Print referral notice. Employee and employer sign notice and original retained in company files. Employee has 8 federal government work days to visit SSA or contact DHS and initiate resolution of TNC. No adverse action against employee while TNC in process.
Final Nonconfirmation If SSA or DHS cannot match the employee s information to their databases, FNC result issued. May terminate employee at this point without any liability. Must close case and select proper closure statement.
What Does the Future Hold? Bills Introduced to Congress. Comprehensive Immigration Reform State Immigration Laws. Increased Enforcement Activity. Litigation. H-2B Workers.
Thank you!!
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