I-9s, No Match Letters and Raids – How To Avoid Making The News Presented by: Cynthia K. Springer Copyright 2008 by Baker & Daniels. These materials may not be reproduced, transmitted, or distributed without the express written consent of the author. They are intended for information only and are not to be considered legal advice. If specific legal issues are raised by matters covered in these materials, consultation with legal counsel may be appropriate.

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3 New Form I-9 BREAKING NEWS!! June 2007 is latest revision date Must use June 2007 version Do not re-do already completed forms June 2007 revision deletes five and adds one acceptable Section 2 document

4 New Form I-9 Deletes: Certificate of U.S. Citizenship (N-560 or N-570) Certificate of Naturalization (N-550 or N-570) Alien Registration Receipt Card (I-151) Unexpired Reentry Permit (I-327) Unexpired Refugee Travel Document (I-571) Adds: Employment Authorization Document (I-766) as List A Document

5 I-9 Basics READ ALL ABOUT IT!! Must examine documents that establish: –employee identity –eligibility to work in the U.S. Eligibility documents must be those listed on Form I-9 Employee must complete Section 1 After reviewing documents to see if genuine, employer completes Section 2

6 I-9 Basics If employee cannot present applicable documents within 3 days after hire, employer may not allow employee to work If employee shows limited employment authorization period, employer must re-verify before stated expiration date If employer learns employee not authorized to work in U.S. or authorization expired, must not allow employee to work

7 I-9 Form Three parts: –Section 1 – completed by employee –Sections 2 and 3 – completed by employer Complete at time of hire; never before offer accepted

8 I-9 Form GOOD NEWS!! No need to complete I-9 for: –employees hired before 11/7/86 –independent contractors –persons providing labor who are employed by contractor providing contract services –casual domestic workers in a private home on sporadic, irregular or intermittent basis

9 I-9 Procedural Checklist Section 1: Employee completes, but employer responsible for proper and full completion Translator may assist in completing and must complete where indicated DO NOT consider Section 1 expiration date in hiring decision, no matter how close that date is to hire date

10 I-9 Procedural Checklist Social Security Number only required when employer participates in E-Verify If permanent resident, Alien Registration number (starting with “A”) must be included and correct If not permanent resident but authorized to work in U.S., Alien number or Admission number must be included and correct

11 I-9 Procedural Checklist Section 1 must be completed by hire date DO NOT request documentation to verify Section 1 information, but DO check that Section 2 documents not inconsistent with Section 1 information If employee lists Section 1 expiration date but Section 2 documents do not contain expiration date, cannot ask for document to verify Section 1 expiration date

12 I-9 Procedural Checklist Review Section 2 documents by employee’s third day of employment If employee hired for less than three days, must review Section 2 documents on first day of employment Give employee list of acceptable documents on or before hire date Tell employee he can produce one List A document or one document each from List B and List C

13 I-9 Procedural Checklist If employee says his document has been lost, stolen or destroyed, tell him he can present receipt showing he has applied for replacement, PROVIDED employee has current employment authorization NEVER tell an employee which documents to present or are preferred DO NOT request that the employee produce an ICE-issued document; if an employee asks what to produce, tell him it is his choice

14 I-9 Procedural Checklist Be sure Section 2 documents are on the list of acceptable documents If a document must be unexpired, be sure it is Only original documents are acceptable, except certified copy of birth certificate is acceptable

15 I-9 Procedural Checklist Check Section 2 documents to see if genuine, relate to employee, and consistent with other employee information Check for obvious tampering or forgery Only reject if obvious defect Compare name on documents with name on I-9

16 I-9 Procedural Checklist Check document descriptive information with visual comparison to employee features If discrepancy, ask employee for explanation If employee explanation reasonable, attach memo from employee with explanation

17 I-9 Procedural Checklist Employer should designate person in charge of IRCA enforcement When discrepancy identified, notify this person IRCA enforcement officer should review before further action taken

18 I-9 Procedural Checklist Once Section 2 documents reviewed and acceptable, employer completes Section 2 If receipt presented, set up 90-day tickler Complete EVERY blank in Section 2 EVERY time even if document copies kept Complete Section 2 within 3 days after hire date

19 I-9 Procedural Checklist Copy Section 2 documents only if doing so is Employer policy Copy documents for ALL employees to avoid discrimination charge

20 I-9 Procedural Checklist EXTRA! If employee gave receipt for application for acceptable document, put in tickler file Must re-verify by 90 th day of work, except if receipt is temporary I-551 stamp on Form I-94, must re-verify before I-551 expiration date or, if none, within 1 year of issuance of I-94 A RECEIPT SHOWING APPLICATION FOR AN INITIAL GRANT OF WORK AUTHORIZATION IS NOT ACCEPTABLE

21 I-9 Procedural Checklist If employee lists Section 1 or List A or List C expiration date, must re-verify Must re-verify by expiration date Ignore List B, U.S. passport or alien’s green card expiration date If employment eligibility document and Section 1 expiration date differ, ask employee for explanation Attach copy of employee’s explanation to form If employee does not clarify but documents appear genuine and relate to employee, re-verify by earlier date

22 I-9 Procedural Checklist If re-hire employee, no need for new form if re-hired within 3 years of initial hire date and still eligible to work Otherwise, do new form or re-verify or update in Section 3

23 Test Your I-9 IQ

24 Test Your I-9 IQ

25 Test Your I-9 IQ

26 Test Your I-9 IQ

27 Test Your I-9 IQ

28 Test Your I-9 IQ

29 Test Your I-9 IQ

30 Record Retention Keep I-9s separate from personnel records to avoid discrimination claims Retain I-9s for at least 3 years after hire date or 1 year after termination of employment, whichever is later I-9s must be available for inspection by ICE or DOL upon request I-9 violations may result in a fine of $110 to $1100 for EACH EMPLOYEE for whom the I-9 was not properly completed and/or retained

31 Electronic Storage It is now legal to store I-9s electronically I-9s also may be completed and signed electronically Can also scan and store existing I-9s Performance standards must be met ensuring reasonable controls to ensure integrity, accuracy, reliability, security, and that I-9s can be searched, retrieved and printed

32 Electronic Storage Advantages include: –cost savings –storage space savings –can ensure proper I-9 completion –ease of searchability –ease of re-verification If audited, can provide records electronically BUT, there are penalties for failing to comply with standards

33 Penalties for Hiring Unauthorized Aliens If knowingly hire unauthorized alien, penalties are (for EACH unauthorized alien): First Offense: $375 to $3200 Second Offense: $3200 to $6500 Subsequent Offenses: $4300 to $16000 BUT, if can show complied with I-9 requirements, this is a “good faith” defense

34 Anti-Discrimination Provision IRCA also prohibits discrimination based on citizenship (or lack thereof) for employer with 4+ employees Supplements Title VII protection against national origin discrimination Employers with 4-14 employees subject to IRCA national origin discrimination provisions Employers with 14+ employees covered by Title VII national origin provisions

35 Anti-Discrimination Provision IRCA protects U.S. citizens and nationals, LAWFUL permanent residents, LEGAL aliens, refugees and asylees There are added requirements concerning naturalization for individuals in the last 4 categories to obtain IRCA protection

36 Anti-Discrimination Provision Prohibits national origin or citizenship discrimination in hiring, recruiting, referring for a fee or discharging Does not cover compensation or other terms and conditions of employment; may be covered by Title VII Prohibits retaliation for filing a charge Prohibits employers from requesting more or different acceptable documents if with intent to unlawfully discriminate

37 Anti-Discrimination Provision Cannot limit jobs to U.S. citizens unless required by law, regulation or executive order; required by government contract; or when attorney general requires Can legally prefer U.S. citizen or national over equally qualified alien to fill a specific position, but not as blanket policy

38 Avoiding Discrimination Penalties DO NOT: –Specify documents you want to see –Require ICE-issued documents to establish employment eligibility –Request additional information or documents if employee has Section 1 expiration date but List C document has no expiration date –Reject a document because it looks different from ICE instruction booklet examples

39 Avoiding Discrimination Penalties Do clarify inconsistent expiration dates and re-verify at earliest date, if unable to clarify For re-verification, accept any acceptable List A or List C document Don’t make further inquiry about employment eligibility based on: –The employee’s physical appearance or accent –Mere rumor or hearsay

40 Avoiding Discrimination Penalties DO make further inquiry if: –ICE or SSA notifies you of discrepancy, document is obviously forged or tampered with, or name and descriptive information does not relate to employee –Receipt is for application for initial List A or List C document –Employee statements conflict with documents –More than mere rumor or hearsay is obtained from workplace sources

41 “No Match” Safe Harbor Rule Employer has “constructive knowledge” of a violation if it “reasonably should know” employee is unauthorized to work in U.S. SSA has been sending “no match letters” advising employers that employee names and SSNs do not match SSA records Has been unclear whether receipt of letter is constructive knowledge of violation

42 “No Match” Safe Harbor Rule In September 2007, DHS finalized rule Rule was challenged, so DHS put out “new” Proposed Rule in March 2008; it is expected to be final by the end of 2008 New rule says employer has constructive knowledge upon receipt of letter If follow steps outlined in “safe harbor” rule, can avoid liability for no-match

43 “No Match” Safe Harbor Rule SSA will include DHS letter explaining safe harbor steps Steps currently require employer within 30 days to: –Check records for typo; if typo, correct records and provide correct info to SSA and verify against SSA records using SSA phone or online confirmation system –If not typo, ask employee to confirm information. If employer’s records incorrect, correct them, give SSA correct information and verify on SSA system –If employee says employer record correct, ask employee to contact appropriate agency to resolve; has 90 days –If employee resolves discrepancy, verify resolution with agency

44 “No Match” Safe Harbor Rule Employers should DOCUMENT all verification actions To avoid constructive knowledge charge, if not resolved by 90 th day, execute new I-9 by 93 rd day as if new employee, EXCEPT –employee may not use Section 2 documents with challenged SSN –employee must provide document with photo to establish identity

45 “No Match” Safe Harbor Rule If employee cannot satisfy requirements, employer may terminate, but risk wrongful discharge if authorized to work in U.S. Could opt to continue to employ and risk that DHS will find constructive knowledge Can open employer up to civil and criminal penalties Recommend consulting legal counsel, especially until law better established

46 E-Verify Was called “Basic Pilot” Allows employers to verify SSN with DHS Now called “E-Verify” To use, must register, sign MOU, and train employees using system I-9 still must be fully completed

47 E-Verify Enter employee information from I-9 into SSA database Initial report instantly checks information If “tentative non-confirmation,” check for clerical error; if so, re-transmit Refer employee to SSA ONLY if: –automated systems directs employer to do so –employee contests tentative non-confirmation

48 E-Verify Employee has 8 days to report to SSA Employer makes second SSA inquiry on 10 th day to get final confirmation or non- confirmation New Development: Adding photo records to eliminate fraud; if have “photographic non-match,” employer sends photo to DHS (scan or mail); DHS notifies within 10 days of final confirmation or non-confirmation

49 E-Verify Potential Drawbacks of E-Verify: –Some states are challenging its legality –MOU requires only accept List B documents with picture, so could limit hiring opportunity and may be deemed discriminatory –MOU requires use for all verifications –Must take action if discrepancy found –Must avoid discriminatory use

50 Tips To Avoid Common Mistakes DON’T: Review documents before making job offer Ask questions about employment eligibility before making job offer Be inconsistent in timing of employment verification and hire date Be inconsistent in length of time job offer remains open pending documentation Have hiring policy requiring U.S. citizenship or green card

51 Tips To Avoid Common Mistakes DON’T: Require more or different documents than those required for I-9 Require U.S. citizenship when not required by government contract Refuse to hire protected alien because work authorization has expiration date Re-verify for permanent resident with green card with expiration date

DHS/ICE ENFORCEMENT STRATEGY

53 Worksite Enforcement Two pronged approach: 1.“Risk-based approach” of enforcement that targets “the worst of the worst employers,” such as employers who make knowingly hiring illegal immigrants part of their business model. ICE “won’t bring criminal charges against employers who accidentally hire an illegal alien” 2.Create and foster “culture of compliance”

54 Worksite enforcement strategy DHS has: Hired additional agents Focused on criminal prosecutions rather than administrative penalties Renewed focus on certain industries –Construction; food processing; restaurant; and agricultural production Worksite criminal investigations and enforcement actions have increased drastically since announcement of initiative

55 Worksite enforcement – Recent examples United States v. Tacuri (D. Mass.) –Owner of roofing company indicted on charges of employing and harboring illegal aliens –Owner alleged to have paid employees without withholding any taxes –Owner alleged to have rented rooms to illegal aliens at his home

56 Worksite enforcement – Recent examples United States v. Ruiz et al. (W.D. Missouri) –Poultry processor –Seven managers, supervisors, and HR personnel indicted on charges related to hiring illegal aliens and inducing an illegal alien to enter or reside in the United States –136 illegal aliens arrested –Search warrant executed

57 How does ICE conduct investigation? Reviews documents –I-9 audit –Financial records –SSA records Interviews witnesses Uses informants, by “flipping” employees, both illegal aliens and supervisor Uses of undercovers

RAIDS AND SEARCHES

59 Sought from judge from U.S. Attorney's Office and federal agency Requires sworn testimony Issued upon showing of probable cause that evidence relating to a federal crime may be found at the place to be searched Must be executed between 6:00 a.m. and 10:00 p.m., unless special circumstances and authorization from judge Search warrant

60 Search Warrant

61 What do agents do during search/raid Element of surprise through timing “Shock and awe” Effectively seal off premises Attempt to interview as many employees as possible Seize or copy documents and computer related materials

62 What to do during search/raid Request to see badges and identification. Write down names and badge numbers Identify who is lead agent or person in charge Consider sending employees home Call counsel Observe/document places searched and items seized Do not interfere with search/collection of evidence

63 Individual rights when law enforcement asks for interview Ask what is subject matter of the investigation Ask if you are a potential target of the investigation Agree to be interviewed, or refuse to be interviewed This right belongs to you and you alone Consult an attorney before making any decision about whether you will agree to be interviewed If you choose to be interviewed, you have the right to: –Request that the interview be conducted at a more convenient time or place, or refuse to be interviewed –Refuse to answer any specific question –Stop the interview at any point

64 Designate point of contact to interact with Government Have copies of critical documents, e.g., I-9 Forms Keep critical documents in isolated, secure space Have counsel’s 24/7 contact information to call to represent company in event of unexpected Government visit Have different counsel’s 24/7 contact information to call to represent employees in event of unexpected Government visit A Plan for Responding

65 What can be done to minimize potential liabilities Effective voluntary compliance program Key features –Periodic evaluation of effectiveness, e.g., monitoring, auditing, etc. –System for reporting illegal/unethical conduct without fear of retaliation –Respond when discover non-compliance or illegal conduct

66 Who gets charged: company or officer/manager/supervisor? Company AND/OR individual managers, supervisors, and/or officers can be charged with violations Will look at all of the circumstances to determine who to charge

67 What type of criminal charges are used for enforcement? Employers (and their agents) –Harboring illegal aliens –Knowingly hiring illegal aliens –Money laundering –Conspiracy –Aiding and abetting –Forfeiture Illegal immigrant employees –Illegal re-entry after deportation –Identity theft –Falsely claiming to be U.S. citizen –Misuse of SSN

68 What government has to prove for conviction? Each substantive statute has different elements Common element to all: –Criminal intent = defendant acted ‘knowingly,’ that is, he realized what he was doing and was aware of nature of conduct, and did not act through ignorance, mistake, or accident

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