I-9 Employment Eligibility Verification Compliance Procedures Presented by: David H. Nachman, Esq. And Gina Giambalvo

Immigration Reform and Control Act of 1986 (“IRCA”) 11/6/ /6/1986 Requires that all employers complete Employment Eligibility Form (I-9) for newly hired employees. Requires that all employers complete Employment Eligibility Form (I-9) for newly hired employees. Designed to control the problem of illegal immigration Designed to control the problem of illegal immigration

IRCA’s Provisions o New Employee must provide documents reflecting: He/She is eligible to work He/She is eligible to work Identity must match work eligibility documents Identity must match work eligibility documents o Sanctions for paperwork violations and document abuse. o Sanctions for knowingly hiring or retaining unauthorized workers. o Created the OSC to enforce anti-discrimination provision of the INA.

Changes after IRCA Immigration Act of 1990 (“IMMACT 90”). Immigration Act of 1990 (“IMMACT 90”). Document Fraud Provisions against employers. Document Fraud Provisions against employers.

Changes After IRCA Immigration Act of 1990 (“IMMACT 90”). Immigration Act of 1990 (“IMMACT 90”). Illegal Immigration Reform And Immigrant Responsibility Act (“IIRAIRA”). Illegal Immigration Reform And Immigrant Responsibility Act (“IIRAIRA”). Bono Amendment and the “Good Faith Defense” for Employers. Bono Amendment and the “Good Faith Defense” for Employers.

Changes After IRCA -1997/ – Interim Rule Reducing the Number of Documents for I-9 Form: 1997 – Interim Rule Reducing the Number 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 reflecting the changes from – Rebranded and New I-9 Form reflecting the changes from 1997.

2009 Updates Expired Documents are no longer acceptable Expired Documents are no longer acceptable Section 1: Separate boxes for U.S. nationals and U.S. Citizens (4 boxes) Section 1: Separate boxes for U.S. nationals and U.S. Citizens (4 boxes) Old Temporary Resident Cards and Employment Authorization Cards are no longer acceptable. Old Temporary Resident Cards and Employment Authorization Cards are no longer acceptable. Added Acceptable Documents to List A: Added Acceptable Documents to List A: U.S. Passport card U.S. Passport card Passport from Federated States of Micronesia Passport from Federated States of Micronesia Passport from Republic of the Marshall Islands Passport from Republic of the Marshall Islands

Completing Form I-9

Beware Document Abuse Documentation must only be requested after job offer is made. Documentation must only be requested after job offer is made. Employer cannot request specific documentation, applicant must decide. Employer cannot request specific documentation, applicant must decide. If new hire provides more documentation than required, new hire should select only the necessary documents – Employer Rep can assist. If new hire provides more documentation than required, new hire should select only the necessary documents – Employer Rep can assist.

Section 1: Employee Information and Verification.

Must be completed by the New Hire. Must be completed by the New Hire. Employer should verify that all information is provided and correct. Employer should verify that all information is provided and correct. Should be completed on the first date of employment. Should be completed on the first date of employment. Preparer/Translator field in Section 1. (Spanish version as a reference). Preparer/Translator field in Section 1. (Spanish version as a reference).

Section 2: Employer Review and Verification.

New Hire provides verification documents from List A, or list B and C. New Hire provides verification documents from List A, or list B and C. Employer reviews documents and completes Section 2. Employer reviews documents and 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 optional. Making copies of the documentation is optional.

Section 3: Updating and Reverification.

Used to reverify documents from List C and some from List A. Used to reverify documents from List C 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 2007 version of the Form I-9. Be sure to reverify employees on the new 2007 version of the Form I-9.

Retention Period Every active employee on payroll must have an I-9 on file. Every active employee on payroll must have an I-9 on file. Forms for terminated employees must be retained for: Forms for terminated employees must be 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. WHICHEVER IS LATER! WHICHEVER IS LATER!

Internal Audits Missing or deficient I-9 Forms discovered during an audit. Missing or deficient I-9 Forms discovered during an audit. Missing I-9’s - complete one immediately and attach an explanatory note for your records. Missing I-9’s - complete one immediately and attach an explanatory note for your records. Deficient I-9’s - immediately correct and initial/date any changes. Deficient I-9’s - immediately correct and initial/date any changes. Termination of employees who cannot provide valid documents to avoid “knowing hire” or “knowing retention” violations. Termination of employees who cannot provide valid documents to avoid “knowing hire” or “knowing retention” violations.

Employer Sanctions Employing Unauthorized Aliens: Employing Unauthorized Aliens: 1 st offense: $250-$2,000 fine per alien. 1 st offense: $250-$2,000 fine per alien. 2 nd offense: $2,000-$5,000 fine per alien. 2 nd 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 Missing Forms: Improperly Completed, Retained or Missing Forms: $100-$1,000 per employee. $100-$1,000 per employee.

Employer Sanctions cont. Knowingly Hiring or Continuing to Employ Unauthorized Alien: Knowingly Hiring or Continuing to Employ 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: 1 st offense: $250-$2, st offense: $250-$2,000. Additional offenses: $2,000-$5,000. Additional offenses: $2,000-$5,000.

Employer Sanctions cont. Discrimination: Discrimination: 1 st offense: $250-$2,000 per individual. 1 st offense: $250-$2,000 per individual. 2 nd offense: $2,000-$5,000 per individual. 2 nd 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 Enforcement Shift in focus of enforcement actions from employees to employers and management. Shift in focus of enforcement actions from employees to employers and management. Critical infrastructure ICE enforcement. Critical infrastructure ICE enforcement. Reduction in penalties for paperwork violations. Reduction in penalties for paperwork violations.

Social Security No Match Issues No Match Letters are sent to both employers and employees. No Match Letters are sent to both employers and employees. Letters are generated and send to employers if.5% of the workforce has a SS no match issue. Letters are generated and send to employers if.5% of the workforce has a SS no match issue. Can result from any number of factors. Can result from any number of factors.

New Safe-Harbor Procedures for Employers for No Match Issues Within 30 days, employer should check records and contact employee to check their records too. Within 30 days, employer should check records and contact employee to check their records too. Within 90 days the employee must take steps to resolve the issue. Within 90 days the employee must take steps to resolve the issue. Then the employer has 3 final days to complete a new I-9 (with a new SSN) if the issue was not resolved. Then the employer has 3 final days to complete a new I-9 (with a new SSN) if the issue was not resolved.

USCIS E-Verify Program “Voluntary” program for US Employers. “Voluntary” program for US Employers. Partnership between the Department of Homeland Security (DHS) and Social Security Administration (SSA). Partnership between the Department of Homeland Security (DHS) and Social Security Administration (SSA). Provides a means for participating employers to verify the employment eligibility status of newly-hired employees. Provides a means for participating employers to verify the employment eligibility status of newly-hired employees.

E-Verify Initial Screen

E-Verify Continued Employers register online with DHS, sign an MOU and participate in training with CIS before running queries. Employers register online with DHS, sign an MOU and participate in training with CIS before running queries. Cannot be used as a pre-screening tool for workforce. Cannot be used as a pre-screening tool for workforce. Must notify employees of E-Verify results (i.e. TNC). Must notify employees of E-Verify results (i.e. TNC).

Employer Responsibilities E-Verify must ONLY be used to verify NEW hires, and must be initiated after the employee accepts the position (hire date) and within 3 days of the employee’s actual start date. E-Verify must ONLY be used to verify NEW hires, and must be initiated after the employee accepts the position (hire date) and within 3 days of the employee’s actual start date. E-Verify procedures must be applied to ALL new hires, regardless of citizenship status. E-Verify procedures must be applied to ALL new hires, regardless of citizenship status.

Employer Responsibilities cont. Employer must post a notice in an area visible to prospective employees that it is a E-Verify Participant. Employer must post a notice in an area visible to prospective employees that it is a E-Verify Participant. Employer must post an Anti- Discrimination Notice issued by the Office of Special Counsel for Immigration – Related Unfair Employment Practices, Department of Justice (DOJ) in an area visible to prospective employees. Employer must post an Anti- Discrimination Notice issued by the Office of Special Counsel for Immigration – Related Unfair Employment Practices, Department of Justice (DOJ) in an area visible to prospective employees.

E-Verify Poster

OSC Anti-Discrimination Poster

Photo Screening Tool The E-Verify photo tool enables employers to match the photo on an employee’s Employment Authorization Document (EAD) or Permanent Resident Card (“green card”) to the photo that USCIS has on file for that employee. The E-Verify photo tool enables employers to match the photo on an employee’s Employment Authorization Document (EAD) or Permanent Resident Card (“green card”) to the photo that USCIS has on file for that employee. Assist employers to detect instances of document fraud. Assist employers to detect instances of document fraud. Photo tool was incorporated into E-Verify for all employers in September Photo tool was incorporated into E-Verify for all employers in September 2007.

Photo Screening Tool Sample

Employees who believe that they have been subjected to discrimination based upon their National Origin or Citizenship or Immigration Status with respect to hiring, firing, recruitment or referral for a fee, through an employer’s use of E-Verify, or when completing the Form I-9 should call the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration Related Unfair Employment Practices at: Employees who believe that they have been subjected to discrimination based upon their National Origin or Citizenship or Immigration Status with respect to hiring, firing, recruitment or referral for a fee, through an employer’s use of E-Verify, or when completing the Form I-9 should call the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration Related Unfair Employment Practices at: (TDD: )

E-Verify: Registration Register online: Register online: Select access method: Select access method: Depending on the answer(s) selected, one of three access methods will be established: Depending on the answer(s) selected, one of three access methods will be established: Employer Employer Designated Agent Designated Agent Corporate Administrator Corporate Administrator

State Legislation Mandatory (7) State Agencies (4) Encourage (2) Pending (10)

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

Federal Contractors New to E-Verify Enroll in E-Verify within 30 calendar days of the contract award date Enroll in E-Verify within 30 calendar days of the contract award date Only contracts with an award date after the effective date of the rule Only contracts with an award date after the effective date of the rule Employer will select “Federal Contractor” during enrollment Employer will select “Federal Contractor” during enrollment Employer will be directed to take the Federal Contractor Tutorial Employer will be directed to take the Federal Contractor Tutorial

Federal Contractors Currently in E-Verify Update company profile through the Maintain Company Page in E-Verify Update company profile through the Maintain Company Page in E-Verify Select “Federal Contractor” option Select “Federal Contractor” option Employer will be directed to take the “Federal Contractor Refresher Tutorial” Employer will be directed to take the “Federal Contractor Refresher Tutorial”

Final Rule Requirements Inserts a clause into applicable Federal contracts committing their use of E-Verify after effective date Inserts a clause into applicable Federal contracts committing their use of E-Verify after effective date Contractors and Subcontractors must verify employment eligibility of all new hires and all employees (existing and new) directly performing work on Federal contracts Contractors and Subcontractors must verify employment eligibility of all new hires and all employees (existing and new) directly performing work on Federal contracts

ICE’s IMAGE Program Partnership between ICE and businesses. Partnership between ICE and businesses. Application-based program, in addition to E-Verify. Application-based program, in addition to E-Verify. The application process includes the following: The application process includes the 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 IMAGE Enroll 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 (encourage employees to inform employers of what is going on inside the company). Implementation of Internal Tip Line (encourage employees to inform employers of what is going on inside the company). Self-Reporting Procedure to Disclose Any Deficiencies to ICE. Self-Reporting Procedure to Disclose Any Deficiencies to ICE. Annual Independent I-9 Process Audit. Annual Independent I-9 Process Audit. Encourage Contactors and Business Partners to Implement the Same Programs. Encourage Contactors and Business Partners to Implement the Same Programs. Annual Report to ICE with results of program participation. Annual Report to ICE with results of program participation.

OSC Telephone Hotline Employers: Employees:

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