I-9 Employment Eligibility I-9 Employment Eligibility Verification Compliance Verification Compliance

ProceduresProcedures

Presented by:Presented by:

David H. Nachman, Esq.David H. Nachman, Esq.

And Gina GiambalvoAnd Gina Giambalvo

Immigration Reform and Control Immigration Reform and Control Act of 1986 (“IRCA”)Act of 1986 (“IRCA”)

11/6/1986 11/6/1986 Requires that all employers complete Requires that all employers complete

Employment Eligibility Form (I-9) for newly Employment Eligibility Form (I-9) for newly hired employees.hired employees.

Designed to control the problem of illegal Designed to control the problem of illegal immigrationimmigration

IRCA’s ProvisionsIRCA’s Provisions

o New Employee must provide documents reflecting:New Employee must provide documents reflecting: He/She is eligible to workHe/She is eligible to work Identity must match work eligibility documentsIdentity must match work eligibility documents

o Sanctions for paperwork violations and document abuse.Sanctions for paperwork violations and document abuse.

o Sanctions for knowingly hiring or retaining unauthorized Sanctions for knowingly hiring or retaining unauthorized workers.workers.

o Created the OSC to enforce anti-discrimination provision Created the OSC to enforce anti-discrimination provision of the INA.of the INA.

Changes after IRCA -1990Changes after IRCA -1990

Immigration Act of 1990 (“IMMACT 90”). Immigration Act of 1990 (“IMMACT 90”).

Document Fraud Provisions against Document Fraud Provisions against employers. employers.

Changes After IRCA 1990 -1996Changes After IRCA 1990 -1996

Immigration Act of 1990 (“IMMACT 90”).Immigration Act of 1990 (“IMMACT 90”).

Illegal Immigration Reform And Immigrant Illegal Immigration Reform And Immigrant Responsibility Act (“IIRAIRA”).Responsibility Act (“IIRAIRA”).

Bono Amendment and the “Good Faith Bono Amendment and the “Good Faith Defense” for Employers.Defense” for Employers.

Changes After IRCA -1997/2007Changes After IRCA -1997/2007

1997 – Interim Rule Reducing the Number 1997 – Interim Rule Reducing the Number of Documents for I-9 Form:of Documents for I-9 Form:

Certificate of U.S. Citizenship (item #2)Certificate of U.S. Citizenship (item #2)Certificate of Naturalization (item #3)Certificate of Naturalization (item #3)Reentry Permit (item #8)Reentry Permit (item #8)Refugee Travel Document (item #9)Refugee Travel Document (item #9)

2007 – Rebranded and New I-9 Form 2007 – Rebranded and New I-9 Form reflecting the changes from 1997. reflecting the changes from 1997.

2009 Updates2009 Updates

Expired Documents are no longer acceptableExpired Documents are no longer acceptable Section 1: Separate boxes for U.S. nationals Section 1: Separate boxes for U.S. nationals

and U.S. Citizens (4 boxes)and U.S. Citizens (4 boxes) Old Temporary Resident Cards and Employment Old Temporary Resident Cards and Employment

Authorization Cards are no longer acceptable.Authorization Cards are no longer acceptable. Added Acceptable Documents to List A:Added Acceptable Documents to List A:

U.S. Passport cardU.S. Passport card Passport from Federated States of MicronesiaPassport from Federated States of Micronesia Passport from Republic of the Marshall IslandsPassport from Republic of the Marshall Islands

Completing Form I-9Completing Form I-9

Beware Document AbuseBeware Document Abuse

Documentation must only be requested Documentation must only be requested afterafter job offer is made.job offer is made.

Employer cannot request specific Employer cannot request specific documentation, applicant must decide.documentation, applicant must decide.

If new hire provides more documentation If new hire provides more documentation than required, than required, new hirenew hire should select only should select only the necessary documents – Employer Rep the necessary documents – Employer Rep can assist.can assist.

Section 1: Employee Information Section 1: Employee Information and Verification.and Verification.

Section 1: Employee Information Section 1: Employee Information and Verification.and Verification.

Must be completed by the New Hire.Must be completed by the New Hire.Employer should verify that all information Employer should verify that all information

is provided and correct. is provided and correct. Should be completed on the first date of Should be completed on the first date of

employment.employment.Preparer/Translator field in Section 1. Preparer/Translator field in Section 1.

(Spanish version as a reference).(Spanish version as a reference).

Section 2: Employer Review and Section 2: Employer Review and Verification.Verification.

Section 2: Employer Review and Section 2: Employer Review and Verification.Verification.

New Hire provides verification documents New Hire provides verification documents from List A, or list B and C. from List A, or list B and C.

Employer reviews documents and Employer reviews documents and completes Section 2.completes Section 2.

Must be completed w/in 3 business days.Must be completed w/in 3 business days.Making copies of the documentation is Making copies of the documentation is

optional.optional.

Section 3: Updating and Section 3: Updating and Reverification.Reverification.

Section 3: Updating and Section 3: Updating and Reverification.Reverification.

Used to reverify documents from List C Used to reverify documents from List C and some from List A. and some from List A.

List B documents are never reverified. List B documents are never reverified. Be sure to reverify employees on the new Be sure to reverify employees on the new

2007 version of the Form I-9. 2007 version of the Form I-9.

Retention PeriodRetention Period

Every active employee on payroll must have an Every active employee on payroll must have an I-9 on file.I-9 on file.

Forms for terminated employees must be Forms for terminated employees must be retained for:retained for:

**One year following an employee’s termination.One year following an employee’s termination.

*Three years from the employee’s date of hire.*Three years from the employee’s date of hire.

WHICHEVER IS LATER!WHICHEVER IS LATER!

Internal AuditsInternal Audits

Missing or deficient I-9 Forms discovered during Missing or deficient I-9 Forms discovered during an audit. an audit.

Missing I-9’s - complete one immediately and Missing I-9’s - complete one immediately and attach an explanatory note for your records.attach an explanatory note for your records.

Deficient I-9’s - immediately correct and Deficient I-9’s - immediately correct and initial/date any changes.initial/date any changes.

Termination of employees who cannot provide Termination of employees who cannot provide valid documents to avoid “knowing hire” or valid documents to avoid “knowing hire” or “knowing retention” violations.“knowing retention” violations.

Employer SanctionsEmployer Sanctions

Employing Unauthorized Aliens:Employing Unauthorized Aliens:11stst offense: $250-$2,000 fine per alien. offense: $250-$2,000 fine per alien.22ndnd offense: $2,000-$5,000 fine per alien. offense: $2,000-$5,000 fine per alien.Additional offenses: $3,000-$10,000 per alien.Additional offenses: $3,000-$10,000 per alien.

Improperly Completed, Retained or Improperly Completed, Retained or Missing Forms:Missing Forms:$100-$1,000 per employee. $100-$1,000 per employee.

Employer Sanctions cont.Employer Sanctions cont.

Knowingly Hiring or Continuing to Employ Knowingly Hiring or Continuing to Employ Unauthorized Alien:Unauthorized Alien:Up to $3,000 per unauthorized alien.Up to $3,000 per unauthorized alien. Imprisonment (if convicted).Imprisonment (if convicted).

Participating in Document Fraud:Participating in Document Fraud:11stst offense: $250-$2,000. offense: $250-$2,000.Additional offenses: $2,000-$5,000.Additional offenses: $2,000-$5,000.

Employer Sanctions cont.Employer Sanctions cont.

Discrimination:Discrimination:11stst offense: $250-$2,000 per individual. offense: $250-$2,000 per individual.22ndnd offense: $2,000-$5,000 per individual. offense: $2,000-$5,000 per individual.Additional offenses: $3,000-$10,000.Additional offenses: $3,000-$10,000.

Requesting Specific Documentation:Requesting Specific Documentation:$100-$1,000 per individual.$100-$1,000 per individual.

Recent EnforcementRecent Enforcement

Shift in focus of enforcement actions from Shift in focus of enforcement actions from employees to employers and employees to employers and management.  management. 

Critical infrastructure ICE enforcement. Critical infrastructure ICE enforcement. Reduction in penalties for paperwork Reduction in penalties for paperwork

violations.violations.

Social Security No Match IssuesSocial Security No Match Issues

No Match Letters are sent to both employers No Match Letters are sent to both employers and employees.and employees.

Letters are generated and send to employers Letters are generated and send to employers if .5% of the workforce has a SS no match if .5% of the workforce has a SS no match issue.issue.

Can result from any number of factors. Can result from any number of factors.

New Safe-Harbor Procedures for New Safe-Harbor Procedures for Employers for No Match IssuesEmployers for No Match IssuesWithin 30 days, employer should check Within 30 days, employer should check

records and contact employee to check their records and contact employee to check their records too.records too.

Within 90 days the employee must take steps Within 90 days the employee must take steps to resolve the issue.to resolve the issue.

Then the employer has 3 final days to Then the employer has 3 final days to complete a new I-9 (with a new SSN) if the complete a new I-9 (with a new SSN) if the issue was not resolved. issue was not resolved.

USCIS E-Verify ProgramUSCIS E-Verify Program

““Voluntary” program for US Employers.Voluntary” program for US Employers.Partnership between the Department of Partnership between the Department of

Homeland Security (DHS) and Social Homeland Security (DHS) and Social Security Administration (SSA).Security Administration (SSA).

Provides a means for participating Provides a means for participating employers to verify the employment employers to verify the employment eligibility status of newly-hired employees.eligibility status of newly-hired employees.

E-Verify Initial ScreenE-Verify Initial Screen

E-Verify ContinuedE-Verify Continued

Employers register online with DHS, sign Employers register online with DHS, sign an MOU and participate in training with an MOU and participate in training with CIS before running queries. CIS before running queries.

Cannot be used as a pre-screening tool for Cannot be used as a pre-screening tool for workforce.workforce.

Must notify employees of E-Verify results Must notify employees of E-Verify results (i.e. TNC).(i.e. TNC).

Employer ResponsibilitiesEmployer Responsibilities

E-Verify E-Verify must ONLY be used to verify must ONLY be used to verify NEW hiresNEW hires, and must be initiated after the , and must be initiated after the employee accepts the position (hire date) employee accepts the position (hire date) and within 3 days of the employee’s actual and within 3 days of the employee’s actual start date.start date.

E-Verify procedures E-Verify procedures must be applied to must be applied to ALL new hiresALL new hires, regardless of citizenship , regardless of citizenship status.status.

Employer Responsibilities cont.Employer Responsibilities cont.

Employer must Employer must post a noticepost a notice in an area in an area visible to prospective employees that it is a visible to prospective employees that it is a E-Verify ParticipantE-Verify Participant..

Employer must Employer must postpost an an Anti-Anti-Discrimination NoticeDiscrimination Notice issued by the issued by the Office of Special Counsel for Immigration Office of Special Counsel for Immigration – Related Unfair Employment Practices, – Related Unfair Employment Practices, Department of Justice (DOJ) in an area Department of Justice (DOJ) in an area visible to prospective employees. visible to prospective employees.

E-Verify PosterE-Verify Poster

OSC Anti-Discrimination PosterOSC Anti-Discrimination Poster

Photo Screening ToolPhoto Screening Tool

The E-Verify photo tool enables employers to The E-Verify photo tool enables employers to match the photo on an employee’s Employment match the photo on an employee’s Employment Authorization Document (EAD) or Permanent Authorization Document (EAD) or Permanent Resident Card (“green card”) to the photo that Resident Card (“green card”) to the photo that USCIS has on file for that employee.USCIS has on file for that employee.

Assist employers to detect instances of Assist employers to detect instances of document fraud.document fraud.

Photo tool was incorporated into E-Verify for all Photo tool was incorporated into E-Verify for all employers in September 2007. employers in September 2007.

Photo Screening Tool SamplePhoto Screening Tool Sample

Employees who believe that they have Employees who believe that they have been subjected to discrimination based been subjected to discrimination based

upon their National Origin or Citizenship or upon their National Origin or Citizenship or Immigration Status with respect to hiring, Immigration Status with respect to hiring,

firing, recruitment or referral for a fee, firing, recruitment or referral for a fee, through an employer’s use of E-Verify, or through an employer’s use of E-Verify, or when completing the Form I-9 should call when completing the Form I-9 should call

the Department of Justice, Civil Rights the Department of Justice, Civil Rights Division, Office of Special Counsel for Division, Office of Special Counsel for

Immigration Related Unfair Employment Immigration Related Unfair Employment Practices at:Practices at:

1-800-255-7688 1-800-255-7688 (TDD: 1-800-237-2515)(TDD: 1-800-237-2515)

E-Verify: RegistrationE-Verify: RegistrationRegister online:Register online:

www.dhs.govwww.dhs.gov/E-Verify/E-VerifySelect access method:Select access method:

Depending on the Depending on the answer(s) selected, one answer(s) selected, one of three access methods of three access methods will be established:will be established:EmployerEmployerDesignated AgentDesignated AgentCorporate AdministratorCorporate Administrator

State LegislationState Legislation

Mandatory (7)Mandatory (7)

State Agencies (4)State Agencies (4)

Encourage (2)Encourage (2)

Pending (10)Pending (10)

Federal Contractors and E-VerifyFederal Contractors and E-Verify

Beginning in February 2009, federal Beginning in February 2009, federal contractors and subcontractors will be contractors and subcontractors will be required to begin using USCIS’ E-required to begin using USCIS’ E-Verify system to validate their Verify system to validate their employee’s eligibility to work in the employee’s eligibility to work in the United StatesUnited States

Federal Contractors Federal Contractors New to E-VerifyNew to E-Verify

Enroll in E-Verify within 30 calendar Enroll in E-Verify within 30 calendar days of the contract award datedays of the contract award date

Only contracts with an award date after Only contracts with an award date after the effective date of the rulethe effective date of the rule

Employer will select “Federal Employer will select “Federal Contractor” during enrollmentContractor” during enrollment

Employer will be directed to take the Employer will be directed to take the Federal Contractor TutorialFederal Contractor Tutorial

Federal Contractors Federal Contractors Currently in E-VerifyCurrently in E-Verify

Update company profile through the Update company profile through the Maintain Company Page in E-VerifyMaintain Company Page in E-Verify

Select “Federal Contractor” optionSelect “Federal Contractor” option

Employer will be directed to take the Employer will be directed to take the “Federal Contractor Refresher Tutorial”“Federal Contractor Refresher Tutorial”

Final Rule RequirementsFinal Rule Requirements

Inserts a clauseInserts a clause into applicable into applicable Federal contracts committing their use Federal contracts committing their use of E-Verify after effective date of E-Verify after effective date

Contractors and Subcontractors must Contractors and Subcontractors must verify employment eligibility of all new verify employment eligibility of all new hires hires and and all employees (existing and all employees (existing and new) directly performing work on new) directly performing work on Federal contractsFederal contracts

ICE’s IMAGE ProgramICE’s IMAGE Program

Partnership between ICE and businesses.Partnership between ICE and businesses.Application-based program, in addition to Application-based program, in addition to

E-Verify.E-Verify.The application process includes the The application process includes the

following:following: Self Assessment.Self Assessment. Form I-9 Review by ICE (NOT an audit).Form I-9 Review by ICE (NOT an audit). SSNVS Review of ALL employees.SSNVS Review of ALL employees.

10 Steps of IMAGE10 Steps of IMAGEEnroll in E-Verify.Enroll in E-Verify.Anti-Discrimination Awareness Training.Anti-Discrimination Awareness Training.I-9 Training for Hiring Staff.I-9 Training for Hiring Staff.Independent Dual Review of I-9 Forms.Independent Dual Review of I-9 Forms.Resolution of SSA No Match Letters.Resolution of SSA No Match Letters.Implementation of Internal Tip Line Implementation of Internal Tip Line

(encourage employees to inform employers (encourage employees to inform employers of what is going on inside the company).of what is going on inside the company).

Self-Reporting Procedure to Disclose Any Self-Reporting Procedure to Disclose Any Deficiencies to ICE. Deficiencies to ICE.

Annual Independent I-9 Process Audit.Annual Independent I-9 Process Audit.Encourage Contactors and Business Encourage Contactors and Business

Partners to Implement the Same Programs.Partners to Implement the Same Programs.Annual Report to ICE with results of program Annual Report to ICE with results of program

participation.participation.

OSC Telephone HotlineOSC Telephone Hotline

EmployersEmployers: 1-800-255-8155: 1-800-255-8155

EmployeesEmployees: 1-800-255-7688: 1-800-255-7688

Any Questions?Any Questions?

Feel free to contact us at:Feel free to contact us at:

201-670-0006 201-670-0006

info@visaserve.cominfo@visaserve.com

Or visit us on the web at Or visit us on the web at

www.visaserve.comwww.visaserve.com