I-9 Compliance Training University of Central Arkansas ...Curricular practical training (CPT) allows students to accept paid alternative work/study, internship, cooperative education,

G E O R G E R E R N S TG E R N S T @ C G W G . C O M

C R O S S , G U N T E R , W I T H E R S P O O N , & G A L C H U S , P . C .

L I T T L E R O C K A N D N O R T H W E S T A R K A N S A S5 0 1 - 3 7 1 - 9 9 9 9

H T T P : / / W W W . C G W G . C O M

I-9 Compliance TrainingUniversity of Central Arkansas

November 28, 2018

mailto:[email protected]

Introduction

Discuss

I-9 Compliance and Audits

Issues with Students and EADS

I-9 Compliance

What is Form I-9?

Used to document that each employee hired after Nov 06, 1986 is authorized to work in the US

All employees must complete a Form I-9, regardless of national origin, if hired after Nov 06, 1986

Refusal to hire an individual because the documentation presented has a future expiration date may constitute illegal discrimination

Employers must retain completed I-9s for either 3 years after the date of hire, or one year of the date employment ends, which ever is later

I-9 Compliance

Who is required to fill out an I-9

Employee:

Must complete Section 1 at the time of hire

“Hire” means when the employment in exchange for wages or remuneration begins

BEST PRACTICE: Employee should complete Section 1 on the first day of employment

Includes employment even for only one (1) day

Employee may complete Section 1 of Form I-9 before the time of hire, but no earlier than acceptance of job offer (cannot use I-9 to pre-screen for employment)

I-9 Compliance

Who is required to fill out an I-9 Completing Section 1:

Have the employee fill out Section 1

Make sure all the boxes are filled out

Must provide social security number

Providing e-mail address or telephone number is voluntary

Ensure that the employee has selected the appropriate box explaining their current status, e.g. US Citizen, Permanent Resident, etc.

Ensure that employee signs and dates Section 1

Check the dates for date of birth and signing date

Preparer / Translator section should only be completed if someone other than the employee completed the Form I-9 in the employee’s presence; however, be sure to select the box indicating no preparer/translator if no preparer/translator was used

I-9 Compliance

I-9 Compliance

Who is required to fill out an I-9

Employer:

Must complete Section 2 within three (3) days of hire

Ensure that Section 1 is completed before finishing Section 2

Remember to fill out the employee’s Last Name, First Name and Middle Initial from Section 1.

Must ask for either an unexpired, original LIST A document or LIST B & LIST C document

I-9 Compliance

Good Faith Document Inspection Reasonable Inspection of the Documents

Examine each original (not copies!) of document(s) to determine if the document reasonably appears to be genuine Look to see if the document looks normal, has all the correct

information If you reasonably determine that a document is not legitimate, you

may reject and ask for another document If you are not sure whether it is legitimate or not, err on the side

that it is legitimate The person that examines the document, must be the same person

that signs the certification

Avoid Document Abuse If an employee presents a valid LIST A document, or valid LIST B and

LIST C documents, no further documentation should be presented to the employer

I-9 Compliance

Completing Section 2 Enter the Employee’s name and the number of the

corresponding Citizenship/Immigration Status Record the Document Title

E.g. U.S. Passport, AR Driver’s License, Social Security Card, etc. Fill out this part as accurate as possible

Make sure that it is clear without accompanying documentation what documents were examined for I-9 verification purposes

Record Issuing Authority Do not skip this step, even for Social Security Cards! Not all Social Security

Cards are from the same issuing authority (SSA or DHHS). For Driver’s License, place DMV beside the issuing state (i.e., AR DMV)

Enter Expiration Date If there is no expiration date, e.g. Social Security Cards, hand write “none”

under expiration date

Social Security Cards with limitations (E.g. “Subject to DHS Authorization) require another document to prove work authorization

I-9 Compliance

Completing Section 2

Certification

Remember to include employee’s first day of employment

Fill out all of the fields

Don’t forget to include employer’s business address

I-9 Compliance

Completing Section 2 Special Circumstances

Exchange Students

Record Form I-20 number or DS-2019 number and the program end date from Form I-20 or DS-2019

Keeping Photocopies

UCA requires a photocopy of the original documents presented

Attach the copies to the back of the I-9

I-9 Compliance

I-9 Compliance

Important elements to remember when completingI-9s

Note expiration dates on documents proving work authorization, remember to “re-verify” work authorization, when documents expire, e.g. I-94s, EADs, etc.

The “Preparer/Translator Certification”

Over Documentation

Extending work authorization for a worker under the “American Competitiveness in the Twenty-First Century Act of 2001 (AC21)”

I-9 Compliance

Fixing Errors

Standard is Good Faith compliance

Line through the portions of the form that contain incorrect information, then enter the correct information

Always initial and date corrections

Do not use white-out. Line through the portions of the form that contain incorrect information, then enter correct information. Initial and date

NEVER BACK DATE A CORRECTION!

Input the date of rehire, if the employee is hired within three (3) years when the I-9 was originally completed

I-9 Compliance

Common Mistakes That May Violate Anti-Discrimination Provisions

Unless using E-verify, asking an employee to provide a specific document with his or her Social Security Number, or asking for a Social Security Number

Considering a future employment authorization expiration date in determining whether an employee is qualified for a particular job

Document Abuse

Best Practice: Uniformity in Process!

I-9 Compliance

Audits Beginning April 2009 ICE began focusing its worksite enforcement

activities on auditing and inspecting employer’s hiring records

The Trump administration has dramatically increased the number of audits, and educational institutions, such as Universities are not immune from auditing

I-9 audits can be followed by criminal warrants and serious fines and penalties

During an I-9 inspection ICE personnel will review I-9 records noting alien registration numbers and social security numbers of employees, and then verify those numbers against government records

May receive notice of intent to fine (NIF)

Fines are $200-$2,000 per incident based on failure %

I-9 Compliance

Common Questions What if a worker didn’t actually have work authorization when the I-

9 was completed? Answer: Employee cannot begin work until work authorization has been received. Complete Section 2 once proper work authorization has been received.

May I ask to see the document with the Alien Number or Admission number? Answer: No

May I accept an expired document? Answer: No

Exception, Social Security Cards, Birth Certificates

Can I accept a photo copy of a document presented by the employee? Answer: No

There are three (3) spaces under LIST A for document numbers, do I have to use all three? Answer: No

Can I complete Section 1 for the employee? Answer: No

J-1 Exchange Visitors

The Department of State (DOS) administers the exchange visitor program and designates the sponsors. Responsible officers within the program issue Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status.

Exchange visitors come to the United States for a specific period of time to participate in a particular program or activity, as described on their Form DS-2019. Only J-1 exchange visitors may use Form DS-2019 for employment when such employment is part of their program. Currently, DOS designates public and private entities to act as exchange sponsors for the following programs.


USICS does not issue EADs (Employment Authorization Documents, Forms I-766) to J-1 exchange visitors. However, they are issued several other documents that, in combination are List A documents and are evidence of employment authorization for J-1 exchange visitors who are not students: Unexpired foreign passport;

Form I-94/Form I-94A Arrival Departure Record indicating J-1 non-immigrant status; and

Form DS-2019 with the responsible officer’s endorsement.

J-1 students may present the documents above if they also have a letter from the responsible officer authorizing employment, or List B and List C documents.


For example, the J-1 student could present a List B document (such as a state driver’s license) and under List C #7, a Form I-94 in combination with Form DS-2019 and a letter from a responsible officer. The documents by themselves do not qualify. Some exchange visitors may extend their status. If you have questions about any exchange visitor’s continued employment authorization, contact the responsible officer whose name and telephone number are on Form DS-2019.

F-1 Nonimmigrant Students

Foreign students pursuing academic studies and/ or language training programs are classified as F-1 nonimmigrants.

Designated school officials (DSO) at certified schools issue Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Students.

F-1 nonimmigrant foreign students may be eligible to work under certain conditions. There are several types of employment authorization for students, including: On-campus employment, Curricular practical training, Off-campus employment based on severe economic hardship, Employment sponsored by an international organization, and Optional practical training.

Foreign students in F-1 nonimmigrant status may work on campus without the approval of a DSO or USCIS.


To complete Section 2, the combination of the F-1 student’s unexpired foreign passport and Form I-94/94A Arrival Departure Record indicating F-1 nonimmigrant status is a List A document for on-campus employment. Employers are not required to record information from the student’s Form I-20 in Section 2.

Foreign students in F-1 nonimmigrant status may work: On the school’s premises, including on-location commercial firms that provide

services for students on campus, such as the school bookstore or cafeteria At an off-campus location that is educationally affiliated with the school.

On-campus employment is limited to 20 hours a week when school is in session. An exception to this limitation applies in cases of emergent circumstances announced by DHS in a notice published in the Federal Register. If the F-1 nonimmigrant student works more than 20 hours a week when school is in session they are considered out of status and their student visa may be revoked and they will be deported.


Curricular practical training (CPT) allows students to accept paid alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school.

The CPT program must be an integral part of the curriculum of the student’s degree program.

The DSO must authorize CPT on the student’s Form I-20.

The employment end date shown in the employment authorization section of the Form I-20 should be entered in Section 1 as the date employment authorization expires.


The following documents establish the student’s identity and employment authorization for Form I-9 purposes and should be entered in Section 2:

List A documents include the combination of:

Unexpired foreign passport;

Form I-20 with the DSO endorsement for employment; and

Form I-94/Form I-94A indicating F-1 nonimmigrant status.

Or List B and List C documents.

The F-1 student could present a List B document (such as a state driver’s license) and under List C #7, Form I-94 indicating F-1 nonimmigrant status with a properly endorsed Form I-20. The documents by themselves do not qualify.


OPT – Optional Practical Training OPT provides practical training experience that directly relates to an F-1 student’s major

area of study. An F-1 student authorized for OPT may work up to 20 hours per week while school is in

session and full-time (20 or more hours per week) when school is not in session. After completing their course of study, students also may participate in OPT for work

experience. USCIS may authorize an F-1 student to have up to 12 months of OPT upon completion of

their degree program.

The student must obtain an EAD from USCIS before they are authorized to work. The student may not begin employment until the date indicated on the EAD.

The EAD establishes the student’s identity and employment authorization for Form I-9 purposes and the employer should record the card number and expiration date under List A in Section 2. When the student’s EAD expires, the employer must re-verify the student’s employment authorization in Section 3.


An acceptable Form I-20 for CPT must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer’s name and location.

Issues with DACA

What is DACA – Deferred Action for Childhood Arrivals Deferred action is a discretionary determination to defer removal

action of an individual as an act of prosecutorial discretion For purposes of future inadmissibility based upon unlawful

presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect

An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect

However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence

May receive work authorization

Issues with DACA

I-9 issues with DACA List A Document

Foreign National Worker will likely present EAD, since this is the only document that will prove work authorization

If the employee presents reasonably genuine EAD then you can rely on the information presented

Employer may not request that the employee provide additional proof that his or her case has been deferred or that he or she is authorized to work

When the validity period of the EAD expires, you must re-verify using Section 3 of the I-9 to ensure the employee is still authorized to work

Cannot “pre-screen” candidates by asking about the nature of an EAD

Issues with EADS

Do I have to hire someone with a conditional 2 year EAD? Answer: Yes

Discrimination

On the basis of national origin

Cannot “pre-screen” candidates by asking about the nature of an EAD

Conclusion

George Ernst

[email protected]

501-371-9999

www.cgwg.com