Update:What does Sonny Bono have to do with Immigration Law?

Gabriella Manolache, J.D.Managing Director, International Employment Services

January 23, 2012

-9

WHY IS THIS IMPORTANT?

Abercrombie & Fitch fined $1M+ After I-9 Audit (9/2010)

ICE Announces New I-9 Audits of More Than 500 Companies (9/2010)

July 07, 2009 Feds Launch I-9 Audits at Hundreds of Employers

Immigration Audits Increasing Against Employers: sixty-six probes done on local work places in fiscal 2010, up from just one in 2008 (10/10)

Subway restaurant to pay $27,000 fine-down from initial fine of $111,078 for 108 distinct I-9 violations (2/2011)

As of September 17, 2011, ICE instituted 3,015 administrative/criminal investigations—a 54% increase over the FY2008 numbers.  In FY2010, ICE arrested and criminally prosecuted 196 owners, HR managers, and executives—a 45% increase over FY2008.  (10/13/2011 ICE Director John Morton’s congressional testimony)

AGENDA

I-9 History

Completing the I-9

Correcting the I-9

Reverification

WHAT DOES SONNY BONO HAVE TO DO WITH I-9 COMPLIANCE?

BACKGROUND

1986 Passage of the Immigration Reform and Control Act (IRCA): I-9 for Each Employee Hired After 11/6/1986

But…the first worksite enforcement-related cases for I-9 errors lacked clear standards to assess penalties, so…

1991 INS issued a memo with a penalty formula but indicated that INS could refuse to adhere to its own formula

IIRAIRA 1996: Congress amended the law to allow a good faith defense for technical/procedural errors (sponsored by Congressman Sonny Bono after he experienced repeated verification issues in his own restaurant)

So…what is a technical/procedural error v. substantive error?

RESULT: SUBSTANTIVE V. PROCEDURAL VIOLATION IS STILL UNDEFINED

LOOK AT FACTS-NOT FACES

I-9 COMPLIANCE PRACTICE POINTERS

Complete Form I-9 for Each Employee Not Independent Contractors, Casual Domestic Workers in Private Home, Workers Employed by

Temp/Leasing Agency, Someone Not Physically Working on U.S. Soil

Section 1: Completed by Employee On First Day of Work (latest)

• …although Employer is liable for any defects in Section 1

• Employer is obligated to ensure employee correctly completes Section 1

• ICE has determined that leaving an area blank in Section 1 is tantamount to an employee refusing to attest to having work authorization (can leave SS number off unless being E-verified)

Section 2: Completed by Employer Within 3 Business Days of Hire Do NOT ask for specific documents (i.e., Green Cards, work cards only)

• Do NOT verify some employees’ documents and not others

• Do NOT copy documents of only certain nationalities to the exclusion of others

• DO note the title of the document, identification #, issuing authority and expiration date of all docs you receive. Abbreviations (SS, DL) are now fine.

• Decide whether to copy documents-unless handling an E-verify case Documents should ‘reasonably’ appear to be genuine

FORM I-9 SECTION 1: EMPLOYEE

SECTION 1: COMMON MISTAKES

No Boxes Checked

No Alien #/Admission # Next to Box 3-4

No Expiration Date Recorded in Box 4

Lack of Employee Signature

Employee Forgot to Date Section 1

FORM I-9: SECTION 2

SECTION 2: COMMON MISTAKES

Listing too many documents

Not listing the document’s title, issuing authority, document number and expiration date

Not listing the date the employee began work

Not signing/dating Section 2

SECTION 2: PROCEDURES FOR COMPLETION

Ask Employee to Provide Documents Establishing Both Identity and Work Authorization (only documents in List A establish both)

Employee Can Provide 1 Item from List A; or

Employee Can Provide 1 Item from List B and 1 Item from List C

CURRENT LIST OF ACCEPTABLE I-9 DOCUMENTS FOR SECTION 2

THINK OF THE FAIR!

Visa stamp=gate pass from consulate I-94 card=ticket that

allows certain activities

Passport=real lifetime ticket for holder and family

members

Permanent Residency=lifetime ticket to the fair-bought by someone else

(sponsor). Can be revoked/abandoned

•Extension of stay=someone who has

not used up all their tickets (I-94 card) can ask

for more tickets•Change of

status=approval to ride different rides

•Violation of status=riding the wrong rides

•Overstaying status=staying in the park after I-94 card expires (tickets

are up)•Deportability=violating fair

ground’s rules

EXAMPLES OF LIST A DOCUMENTS: ALL MUST BE UNEXPIRED

U.S. Passport

U.S. Passport Card

Old-style Green Card

Permanent Resident (Green Card) May 2010: Newly Re-designed Green Cards:

Now they are actually green!

A foreign passport with an I-551 (Green Card) stamp

Temporary I-551 notation on a machine-readable

visa stamp

LIST A DOCUMENT SAMPLE CONT’D: ALL MUST BE UNEXPIRED

Brand new EAD card as of 2/11/11-

may contain a statement of travel

authorization

+

Passport from Micronesia or the Marshall Islands + an I-94 card

reading “CFA/MIS” for an RMI citizen, and “CFA/FSM” for an FSM citizen.

+ + OR

I-94 card, plus foreign passport bearing the same name as I-94, plus EITHER a Form I-20 or Form DS-2019

Brand new EAD card as of 10/25/11

CAUTION!

F-1 (students) and J-1 (exchange visitors) holders will not have an expiration date listed on their I-94 card

Instead, their I-94 cards will read “D/S” for Duration of Status

Therefore, look at the person’s DS-2019 or I-20 to get the expiration date

OTHER ACCEPTABLE DOCUMENTS: NONIMMIGRANT EXTENSIONS

+ +

I-797C Receipt Notice

Foreign Passport Expiring I-94 card indicating nonimmigrant status

The receipt date indicates that the extension was filed timely. Write “240 Day Ext.” in the margin of Form I-9 next to Section 2, along with

the receipt date

•Nonimmigrant employee (already working with employer) whose current status is expiring but who filed a timely extension application (H-1B, L-1, O-1, TN)•For expiration date, he/she is authorized to continue working with TTUHSC until date of USCIS’s decision, but no later than 240 days from the date of the I-94 card’s expiration (**the I-94 card must reflect the same status for which an extension was just filed).•So…update the I-9 when the receipt notice arrives in the office BEFORE the employee’s current status expires. Be sure to update Section 3 after the approval notice arrives.

OTHER ACCEPTABLE LIST A DOCUMENTS: H-1B TRANSFER (PORTING)

The receipt date

I-797C Receipt Notice

Foreign Passport

+ +

Current I-94 card indicating H-1B status (from the previous employer)

•Situation where an H-1B employee is transferring to a new employer from a prior employer (most common fact pattern)•For start date of employment, use the “receipt date” or later•For expiration, he/she is authorized to work with new employer until date of USCIS’s decision. For our purposes, no later than 240 days from the date of the I-797C receipt notice. Be sure to update Section 3 when the approval notice arrives!•Write “AC-21” in the margin of Form I-9 next to Section 2 and include the receipt date of your organization’s application•CAVEAT: Under INA 214(n)(2), H-1B portability is extended to any nonimmigrant that previously held H-1B status (ex: H-1B to H-4 to H-1B). Be very careful with Portability, as E-Verify and USCIS guidance suggests that only foreign nationals who are currently in H-1B status or have a pending H-1B can qualify for portability (clearly contrary to the plain meaning of the statute).

OTHER ACCEPTABLE LIST A DOCUMENTS: FROM I-9 CHART LIST A(5)

+

Foreign passport

I-94 card bearing work-authorized nonimmigrant status (refer to page 34 in old I-9 handbook for a list of classifications that authorize work, like E-3, H-1B, J-1, L-1, TN, O-1)

May or may not be accompanied by a nonimmigrant Approval

Notice (I-797B)

Expiration date: listed on

I-94 card

I-94 portion is missing

•I-797B is issued to those who have never been to the USA or to those whose change of status cannot be approved. This means you are qualified for the job but that a change of status cannot be approved to stay and work in the USA for two reasons:1. you are NOT in the USA currently; or2. you may have committed an immigration violation. Documents submitted during filing do not provide enough evidence that you were legally employed at all times, or had never been out of status, etc.Hence, such applicants if in the U.S. must leave and apply for a visa at a U.S. consulate. The officer will determine if the applicant is eligible for re-entry based on evidence provided at the consular interview.

OTHER ACCEPTABLE LIST A DOCUMENTS: TEMPORARY PROTECTED STATUS (TPS)

EAD card (I-765) that is expired on its face, but….

+Designated Country

Most Recent Designation Date

Current Expiration Date

Current Re-Registration Period

EAD Automatically Extended Through

El Salvador

March 9, 2001 September 9, 2013January 9, 2012 –March 12, 2012

September 9, 2012

Haiti July 23, 2011 January 22, 2013May 23, 2011-August 22, 2011

January 22, 2012

Honduras January 5, 1999 July 5, 2013November 4, 2011-January 5, 2012

July 5, 2012

Nicaragua January 5, 1999 July 5, 2013November 4, 2011-January 5, 2012

July 5, 2012

Somalia September 4, 2001 September 17, 2012November 2, 2010-January 3, 2011

No Automatic Extension-sufficient time given to extend

Sudan October 7, 2004 May 2, 2013October 13, 2011-April 10, 2012

May 2, 2012

Sometimes DHS must issue a blanket automatic extension of the expiring EADs for TPS beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. The Federal Register will tell you if your EAD has been temporarily auto-extended and to what date. http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=848f7f2ef0745210VgnVCM100000082ca60aRCRD&vgnextchannel=848f7f2ef0745210VgnVCM100000082ca60aRCRD

Extension date

LIST B: WHO ARE YOU?

WHO ARE YOU? LIST B SAMPLE DOCUMENTS: ALL DOCUMENTS MUST BE UNEXPIRED

Any state driver’s license

A state-issued ID card

Driver’s license issued by a Canadian government authority

Voter Registration Card

Other Acceptable Documents:

•School ID with Photo•U.S. Military Card or draft record•Military dependent’s ID card•U.S. Coast Card Merchant Mariner Card•Native American Tribal Document

NOTE: Do not accept a List B document unless it contains a photo of the person whom you will be running through E-Verify

LIST C: ARE YOU AUTHORIZED TO WORK?

DO YOU HAVE WORK AUTHORIZATION? LIST C SAMPLE DOCUMENTS: ALL MUST BE UNEXPIRED

Social Security Card-UNLESS it specifies on its face that it does not authorize employment in the

U.S.

Certificate of Birth Abroad issued by the State Department: Document FS-

545

Original or Certified Copy of a birth certificate issued by state, county, municipal authority or

outlying possession of the U.S.

Certification of Report of Birth issued by the State Dept.

Document DS-1350

U.S. Citizen ID Document I-197 (no longer issued but still valid) •Native American Tribal document

LIST C DOCUMENT SAMPLE CONT’D: ALL MUST BE UNEXPIRED

ID Card for use of Resident Citizen in the U.S. Document I-179

+

Form I-20 endorsed for CPT or off-campus employment, plus an I-94 card

(foreign students have F-1 status)

+

Form DS-2019 plus an I-94 card reflecting J-1 status

I-94 card with an asylee approval stamp reading “Asylum” or “Granted Indefinitely” or “274a.12(a)(5) or INA 208. This

document does not expire!

LIST C DOCUMENT SAMPLE CONT’D: ALL MUST BE UNEXPIRED…WITH ONE EXCEPTION

Approved for the sponsoring

organization

Expiration Date

I-797AApproval Notice

•Employment Authorization document issued by Dept.of Homeland Security

(other than that listed in List A) An expired 2-year Permanent Resident card (I-551) with Form I-797C Receipt Notice indicating that the card has been extended for 1 year. New

I-9 Expiration Date: 1 year past expired card

+

+

THE RECEIPT RULE

I can’t provide any ID documents within 3 business days of my

employment! What now?•There are 3 types of acceptable

receipts (RECEIPT RULE):

Does not include the word “expired.”

CORRECTING I-9 ERRORS

If error is noticed immediately, shred initial I-9 and start over with new I-9 If error occurred in the past, take the following steps: NEVER ERASE OR USE WHITE-OUT Section 1 error: any correction must be completed by the employee. Wrong information contained in

Form I-9 must be crossed out and filled in correctly using a different color ink pen than originally used. Areas which are blank must be filled in by the employee using a different color ink pen than originally used. All changes must be dated and initialed by the employee.

Section 2 error: any correction must be completed by HR. Wrong information contained in Form I-9 must be crossed out and filled in correctly using a different color ink pen than originally used. Areas which are blank must be filled in by HR using a different color ink pen than originally used. All changes must be dated and initialed by the HR rep.

REVERIFICATION: SOMEONE’S STATUS IS ABOUT TO EXPIRE-NOW WHAT?

Personal Responsibility

Expiration Notification

Status must be re-verified no later than the date that the employee’s current status expires

Follow the same steps with re-verification as with initial I-9

Do not re-verify an expired U.S. Passport, passport card, 10-year Permanent Resident Card or a List B document that has expired

Section 3 of Form I-9: Filled out by the employer’s representative

SECTION 3: REVERIFICATION AND REHIRING

Reverification: Employer completes Section 3 or if Section 3 is already full, print new I-9 and write the Employee’s name in Section 1 before proceeding to Section 3. Attach the old I-9 to the new I-9.

Rehiring: Employer completes Section 3 or if Section 3 is already full, use a new I-9 if:

•Employee is being rehired within 3 years of their initial date of hire; and•The employee’s previous grant of employment has expired, but he/she can now work under a new grant of employment.

•No need to complete Section 3 or a new Form I-9 if employee is being rehired within 3 years and the old I-9 indicates that the employee is still eligible to work on the same basis as when the original I-9 was completed. Instead, just update Section 3 of the old I-9 with the new rehire date.

***Caveat: A new I-9 must be completed if the previously completed I-9 is an older version of the form.

WHAT HAPPENS IF I DON’T GET IT RIGHT?

A LITTLE HUMOR

YES!!!!!!!!!!

Justice Department’s Office of Special Counsel Pursues Discrimination Claims Based on National Origin or Immigration Status

Justice Department Settles with University of California San Diego Medical Center (Jan. 4, 2012)

WASHINGTON – The Justice Department today reached agreement with the University of California San Diego Medical Center, resolving a complaint filed on Dec. 6, 2011, alleging that the medical center failed to comply with proper employment eligibility verification processes.

DON’T:

Demand specific documents:

In May 2011, OSC reached a settlement that provided for $45,760 in civil penalties from an employer that had a policy of requiring newly‐hired non‐U.S. citizen workers to produce specific government‐issued documentation before they were permitted to begin work, while U.S. citizen new hires were permitted to present their choice of documents to satisfy the Form I‐9 process and to begin employment.

Ask certain workers for more documents than necessary to complete Form I-9:

In October 2010, OSC reached a settlement with an employer that provided for $257,000 in civil penalties after finding the employer engaged in a pattern and practice of requiring naturalized U.S. citizen workers and non‐U.S. citizen workers to produce more documents than required by law for the Form I‐9 process.

Reject valid work authorization documents from non-U.S. citizens but accept the same documents from U.S. citizens:

In June 2010, OSC reached a settlement providing for $8,586 in back pay to two non‐U.S. citizen workers and $2,200 in civil penalties after finding the employer rejected their unrestricted Social Security cards and demanded to see additional documents to prove their work eligibility, but routinely accepted Social Security cards presented by U.S. citizen workers.

Demand that Lawful Permanent Residents present new Green Cards when theirs expire but do not ask U.S. citizens to produce new documents when theirs expire:

In November 2010, OSC reached a settlement including $10,200 in civil penalties against an employer that had a pattern and practice of requiring all lawful permanent resident workers who presented green cards for the Form I‐9 to present renewed green cards when their cards expired, but did not require U.S. citizen workers to present renewed documents when their documents expired.

NOT SO FUNNY: MONETARY PENALTY TABLE

Substantive / Uncorrected Technical Violation Fine Schedule: Standard Fine Amount: (0% -  9%) $110, $550, $1,100; (10% - 19%) $275, $650, $1,100; (20% - 29%) $440, $750, $1,100; (30% - 39%) $605, $850, $1,100; (40% - 49%) $770, $950, $1,100; (50% or more) $935, $1,100, $1,100.

Enhancement Matrix Aggravating/Mitigating Factors: Business size; Good faith; Seriousness; Unauthorized Aliens; History. +5% for Aggravating, -5% Mitigating

IN CLOSING…

Become familiar with M-274 Handbook for Employers, located at http://www.uscis.gov/files/form/m-274.pdf (revised 06/01/2011)

Visit I-9 Central located at http://www.uscis.gov/I-9Central

Use current version of Form I-9 (Exp. date of 8/31/2012). Look for the “Y”

PowerPoint presentation is not meant to cover every possible I-9 Scenario