Employment Eligibility Verification (Form I-9) Compliance March 2007

Fragomen, Del Rey, Bernsen & Loewy, LLP Enrique Gonzalez III Partner Fragomen, Del Rey, Bernsen & Loewy, LLP One Alhambra Plaza, Ste. 600 Coral Gables, FL 33134 Phone: (305) 774-5800 Fax: (305) 774-6666 egonzalez@fragomen.com www.fragomen.com

ENFORCEMENT IN THE NEWS

Enforcement in the News August - ICE arrests 41 illegal aliens working at America’s Fair in Hamburg, NY; 51 illegal aliens arrested at Oklahoma saddle factory during search warrant execution July - ICE agents arrest 3 illegal alien workers in Gulfport; Employers in Arkansas, Kentucky and Ohio hit with criminal charges in connection with illegal alien employment schemes June - ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles International Airport; ICE arrests 55 illegal aliens working at secure construction site on grounds of Dulles International Airport May - ICE arrests unauthorized workers at L.A. Department of Water and Power; ICE arrests 29 unauthorized workers at construction company that services Camp Pendleton Marine Corps Base April - ICE agents arrest seven managers of nationwide pallet company and 1,187 of the firm’s illegal alien employees in 26 states March - ICE Worksite Enforcement Operation Nets More Than 50 Illegal Aliens

WORKSITE ENFORCEMENT Expansion of the current “Basic Pilot” system nationwide Verification System interoperable between DHS and SSA Must electronically re-check all U.S. workers, including citizens Machine-readable, tamper-proof ID containing biometrics Documents used to verify employment limited to tamper-resistant and machine-readable Social Security Card or Employment Authorization Document Substantial increase in fines

I-9 UPDATE On October 30, 2004, the President signed a new bill into law, amending Section 274A(b) of the Immigration and Nationality Act (INA). The law became effective on April 28, 2005 The new law permits, but does not require, employers to complete, sign and store I-9s electronically The new law allows employers to go “paperless.”

I-9 UPDATE (con’t) DHS finally published implementing regulation on June 15, 2006 New I-9 regulation is technology-neutral Permits employers to adopt any electronic storage technology so long as it meets certain minimum standards, including adequate security features that limit access to authorized personnel insure data integrity provide means for producing hard copies include search and indexing mechanisms

SSA “NO MATCH” LETTERS ICE published proposed rule on June 14, 2006 Provided suggested procedures for employers who receive SSA “no match” letter Procedures also apply when employers receive notification from DHS that immigration status or EAD reported for employee does not match agency records Employers who follow suggested procedures would be provided with “safe harbor” against sanctions ICE is accepting comments and final rule may reflect public input

SSA “NO MATCH” LETTERS (con’t) Employers who receive “no match” notification are advised to: Check their records for possible clerical errors If necessary, request the employee's confirmation of the employer's records If the discrepancy still cannot be resolved, repeat the Form I-9 employment eligibility verification process. If properly followed, these procedures could safeguard the employer from a finding that it knowingly hired or continued to employ an unauthorized worker in violation of the Immigration Reform and Control Act of 1986 (IRCA).

DHS’s NEW IMAGE PROGRAM DHS announced program in July 2006 ICE Mutual Agreement between Government and Employers (IMAGE), created by U.S. Immigration and Customs Enforcement (ICE) Designed to build cooperative relationships between government and businesses and reduce unauthorized employment Participation is voluntary Companies that comply with program requirements will be “IMAGE certified”

IMAGE (con’t) Employer participants must: Agree to a Form I-9 audit by ICE Use USCIS’s Basic Pilot Employment Verification Program when hiring employees Basic Pilot is an internet-based system that provides an automatic link to federal databases to help employers determine eligibility of new hires To date, Basic Pilot has experienced substantial delays in providing verification to employers

IMAGE (con’t) To become IMAGE-certified, employers must adhere to “best practices” such as: Creating internal training programs for completing employment verification forms and detecting fraudulent documents Arranging for audits by neutral parties Establishing protocols for responding to SSA no-match letters Establishing a tip line for employees to report violations Establishing mechanisms for company to self-report violations to ICE

IMAGE (con’t) Benefits to employers: ICE will provide training and education to IMAGE partners on proper hiring procedures, fraudulent document detection and anti-discrimination laws ICE will also share data with employers on the latest illegal schemes used to circumvent legal hiring processes ICE will review the hiring and employment practices of IMAGE partners and work collaboratively with them to correct isolated, minor compliance issues that are detected Participation in IMAGE will help companies reduce unauthorized employment and minimize identity theft

DHS INITIATIVES IN COMBATING FRAUDULENT DOCUMENTS Working with DOS to implement Western Hemisphere Travel Initiative Limiting number and type of documents accepted Border Officer Training Focusing on fraudulent document detection Biometrics and International Cooperation Collecting biometrics via US-VISIT at Ports of Entry Requiring VWP countries to report all lost and stolen passports to Interpol and DHS ICE Document Fraud Operations 11 Document & Benefit Fraud Task Forces Forensic Document Laboratory

FORM I-9 COMPLIANCE

WHO CAN WORK IN THE UNITED STATES? U.S. Citizens Lawful Permanent Residents Nonimmigrants with work authorization from the USCIS Students with work authorization (typically an “EAD”) Others (refugees, asylees, TPS) with work authorization

BASIC I-9 REQUIREMENTS Complete I-9 for every new hire since November 6, 1986 May not hire or continue to employ someone who is not authorized to work in the U.S.

WHO TO I-9 I-9 employees, not independent contractors Do not I-9 employees working outside the United States or its territories All employees in the US, even if on payroll abroad I-9 temporary and part time employees

CONTRACTORS & TEMPORARY AGENCIES No I-9 form is needed for true independent contractors If you contract with a temporary agency for personnel, follow the following guidelines: Clearly identifying the agency as the “employer” Indicate the agency will comply with State and Federal requirements including, but not limited to, proper I-9 completion and maintenance. Include an indemnification clause Entering into a contract with “knowledge” of unlawful status can remove the independent contractor protection.

COMPLETING THE I-9

U.S. Department of Justice OMB No. 1115-0136 Immigration and Naturalization Service Employment Eligibility Verification Please read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire individuals because of a future expiration date may also constitute illegal discrimination. Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins Print Name: Last First Middle Initial Maiden Name Address (Street Name and Number) Apt. # Date of Birth (month/day/year) City State Zip Code Social Security # Employee’s Signature Date (month/day/year) I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form. I attest, under penalty of perjury, that I am (check one of the following): A citizen or national of the United States A Lawful Permanent Resident (Alien # A_____________________ An alien authorized to work until _____ / _____ / _____ (Alien # or Admission # ___________________________________ Preparer and/or Translator Certification. (To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct. Preparer’s/Translator’s Signature Print Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)

TIPS FOR SECTION 1 Section 1 must be completed by employee on or before first day of hire Ensure that employee checks box, and signs and dates the form If employee checks box 2, A # must be entered If employee checks box 3, expiration date and A# or I-94 number must be entered

MOST COMMON ERRORS ON SECTION 1 1. Name in wrong order 2. Address incomplete 3. Social Security Number missing 4. Attestation not checked or incomplete 5. Signature missing 6. Date missing 7. Date of birth instead of current date

FORM I-9 SECTION 2 Section 2. Employer Review and Verification. To be completed and signed by employer. Examine on document from List A OR examine one document from List B and on from List C as listed on the reverse side of this form and record the title, number and expiration date, if any, of the document(s) List A OR List B AND List C Document title: _________________________ ______________________________ ___________________________ Issuing authority: ________________________ ______________________________ ___________________________ Document #: ___________________________ ______________________________ ___________________________ Expiration Date (if any): ___ / ___ / ___ ___ / ___ / ___ ___ / ___ / ___ Document #: ___________________________ Expiration Date (if any): ___ / ___ / ___ CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year) ____ / ____ / ____ and that to the best of my knowledge the employee is eligible to work in the United States. (State employment agencies may omit the date the employee began employment.) Signature of Employer or Authorized Representative Print Name Title Business or Organization Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)

REVERSE OF FORM I-9 The “List of Acceptable Documents” Update on USCIS website www.immigration.gov Not entirely accurate (the INS Form I-151, the old Green Card, is since March 19, 1996 no longer valid as a list A document) WIll be revised in accordance with IIRAIRA List A: U.S. passport may be unexpired or expired (only exception to the rule that all documents must be unexpired) List B: all documents from list B must contain a photograph or information such as name, date of birth, sex, height, eye color, and address List C:birth certificate no longer acceptable after IIRAIRA implemented http://uscis.gov/graphics/services/employerinfo/eibulletin.htm

TIPS FOR SECTION 2 Section 2 must be completed by company representative within 3 business days of hire Verification of IDENTITY and WORK AUTHORIZATION Company representative must review ORIGINAL documents Attach copies of documents presented to the I-9

MOST COMMON ERRORS ON SECTION 2 8. Columns A, B, or C left blank with copies attached 9. Document tile missing 10. Document number missing 11. Document expiration date missing

MOST COMMON ERRORS ON SECTION 2 (cont.) 12. Column B and C documents reversed 13. Too many documents requested 14. Date of hire missing 15. Employer certification incomplete (preprint)

FORM I-9 – SECTION 3 Section 3. Updating and Reverification. To be completed and signed by employer. A. New Name (if applicable) B. Date of rehire (month/day/year) (if applicable) C. If employee’s previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility. Document Title: _________________________ Document #: __________________ Expiration Date (if any): ____ / ____ / ____ I attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual. Signature of Employer or Authorized Representative Date (month/day/year) Form I-9 (Rev. 11-21-91) N

Never Reverify  US Citizens WHO MUST BE REVERIFIED? Never Reverify  US Citizens Almost Never Reverify  LPR Almost Always Reverify  Others

SPECIAL REVERIFICATION ISSUES Lawful Permanent Residents Only reverify if I-551 stamp is presented Other Always reverify by expiration date in Section 1 Exception: Evidence of asylee status presented

SAMPLE I-551 CARD (AKA “GREEN CARD”)

SAMPLE I-551 STAMP

MOST COMMON ERRORS ON SECTION 3 Reverification not completed in a timely manner Document provided was not acceptable or inadequately described Over-documentation (do not reverify identity) Employer signature or date missing

TIPS FOR COMPLETING I-9S ON BEHALF OF TEMPORARY WORKERS

HOW TO I-9 AN H-1B Acceptable List A Documents Unexpired Foreign Passport and INS Form I-94 (Form I-94 should have employer’s name endorsed or Form I-797 with employer’s name should be examined)

HOW TO I-9 AN H-1B Acceptable List B & C Documents List B Identity document and Restricted U.S. Social Security Card with legend stating “valid for work only with INS authorization” (must also see evidence of work authorization such as I-94. I-94 must have employer’s name endorsed or Form I-797 with employer’s name should be examined)

H-1B PORTABILITY An H-1B worker may start working for a new company while the H-1B change of employer petition is pending so long as the following criteria is met: Foreign national entered legally Foreign national hasn’t worked without authorization Non-frivolous petition is filed before I-94 card expires

HOW TO I-9 A PORTABLE H-1B Acceptable Documents: Same as H-1B visa holder with the exception that employer must also have: Evidence of filing of the change of employer petition with the CIS and Original employer’s Form I-94

HOW TO I-9 AN L-1 Acceptable List A Documents Unexpired Foreign Passport and INS Form I-94 (Form I-94 should have employer’s name endorsed or Form I-797 with employer’s name should be examined)

HOW TO I-9 AN L-1 Acceptable List B & C Documents List B Identity document and Restricted U.S. Social Security Card with legend stating “valid for work only with INS authorization” (must also see evidence of work authorization such as I-94. I-94 must have employer’s name endorsed or Form I-797 with employer’s name should be examined)

I-94 REFLECTING ADMISSION TO U.S. AS L-1

L-2 VISA - SPOUSAL WORK AUTHORIZATION Status tied to spouse’s L-1 employment authorization Employment document is not employer specific Must request EAD from CIS

HOW TO I-9 AN L-2 SPOUSE Acceptable List A Documents Unexpired Employment Authorization Card

SAMPLE EMPLOYMENT AUTHORIZATION CARD

F-1 VISA – OPTIONAL PRACTICAL TRAINING Students can engage in “optional practical training”, pre- or post-graduation, for a total of 12 months; part-time during school year, full-time during vacations Not employer specific Acceptable List A Document Unexpired Employment Authorization Document (I-688B or I-766)

F-1 VISA – CURRICULAR PRACTICAL TRAINING “Curricular” practical training allowed if part of educational program or for off-campus employment based on unforeseen extreme economic hardship Acceptable List A Documents Form I-688B or Form I-766 Acceptable List B & List C Documents List B identity document in conjunction with an endorsed Form I-20 indicated employment authorization and Form I-94 reflecting that student was admitted to the US in F-1 status for duration of status (D/S)

I-94 EVIDENCING ADMITTANCE OF STUDENT IN F-1FOR DURATION OF STATUS

I-120 ID

ENDORSEMENT ON BACK OF I-20

RECEIPT RULE: Employee must already have work authorization May only accept receipt for replacement document that was lost, stolen, or damaged May not accept receipt for extension of EAD Must see an original document within 90 days of hire (docket this date)

AUTHORIZING AN AGENT TO COMPLETE AN I-9 An employer may delegate the authority to complete an I-9 The employer retains the liability for errors Select someone responsible Provide written guidance and contact information

REHIRING No I-9 needed if employee is “continuing to be employed” Leave of absence, disability, vacation, etc Promotion or demotion Strike, temporarily laid off Disciplinary suspension Transfer between one distinct unit of employer to another I-9s may be reused if completed within 3 years of date of rehire (new I-9 recommended)

I-9 PENALTIES--FINES Civil Money Penalties: $110 - $1,100 per I-9 for mistakes or omissions Penalty: $275 - $11,000 for knowing hire or continuing to employ (10% less for errors that occurred before September 29, 1999)

KNOWLEDGE Actual knowledge includes knowledge of supervisors at company Constructive knowledge includes circumstances where the company “should have known”

I-9 PENALTIES--FINES Liability for employers’ technical or procedural paperwork errors limited If the employer makes a good faith effort to comply with the I-9 verification requirements, no fines for mere technical or procedural errors Does not apply if errors not corrected within 10 business days from the date INS notifies of errors Does not apply if pattern and practice found Applies to errors made after September 30, 1996

TIPS FOR CORRECTING I-9s All corrections should be initialed and dated with date of correction Do not use white-out Do not obliterate information Sample Fictitious names on this form Employee asked to correct incorrect date (date of birth had been inserted in space where date of completion belongs)

Date corrected by employee

I-9 PENALTIES--CRIMINAL $3,000 per unauthorized alien and up to six months in jail for pattern and practice of employing unauthorized workers Five years imprisonment for person who, during any 12-month period, knowingly hires at least 10 individuals with actual knowledge that the individuals are unlawful workers

OTHER PENALTIES Criminal liability for document fraud Debarment from government contracts for “knowingly” employing an unauthorized worker

DISCRIMINATION ISSUES AND RECRUITING LANGUAGE

BASIC I-9 DISCRIMINATION VIOLATIONS Document Abuse Citizenship Status Discrimination (distinguished from National Origin Discrimination) Retaliation

DOCUMENT ABUSE May not ask for more or different documents May not refuse to accept valid documents presented Should not specify which documents will be acceptable Penalty: $110 - $1,100

CITIZENSHIP STATUS DISCRIMINATION May not treat persons in the "PROTECTED CLASS" differently for purposes of hiring or firing. Penalty: $2,000, $5,000, $10,000

“PROTECTED CLASS” INCLUDES U.S. Citizens or Nationals Permanent Residents Refugees Asylees Temporary Residents under the legalization program (Special Agricultural Worker or amnesty applicant)

I-9 "PROTECTED CLASS" DOES NOT INCLUDE: Non-Immigrants Such As: - F-1 - J-1 - H-1 Asylum Applicants Illegal Aliens

RECRUITING ISSUES How do I identify who needs a visa? What questions can I ask?

OFFER GUIDELINES Do not discriminate against members of “protected class” Do not treat members of “protected class” differently from one another Use written questionnaire rather than verbal questions

WHAT TO ASK: SAMPLE FORMAT #1 Are you legally authorized to work in the United States? yes ____ no _____ Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status?) yes ____ no _____

WHAT TO ASK: SAMPLE FORMAT #2 Are you one of the following: Citizen or National of the United States, Lawful Permanent Resident, Refugee, Asylee, or Temporary Resident (does not include non-immigrant visas such as F-1, J-1, H-1,etc.) yes____ no____

NO DISCRIMINATION IF: Request for additional documents not made with the intent to discriminate

NO DISCRIMINATION IF REQUIRED BY: Law Regulation Executive Order Government Contract As Determined By Attorney General

ESTABLISH AN I-9 COMPLIANCE SYSTEM Assess I-9 liability Assess current I-9 procedures Conduct I-9 training Correct I-9s Update I-9 procedures

ISSUES FOR I-9 POLICY What questions to ask in recruitment When to complete I-9 Whether to photocopy documents How to reverify I-9s How to store and maintain I-9s Moving I-9s to separate file upon termination How to transfer I-9s when employee transfers within company

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