Update on I-9 Compliance

Report
Update on I-9 Compliance
November 2005
Overview of I-9 Laws
• The I-9 laws require employers to verify the
identity and employment eligibility of every
worker hired after November 6, 1986.
• Employers are liable for “knowingly” hiring
or continuing to employ unauthorized aliens
even if the I-9 form is properly completed.
• Sanctions can include civil and criminal
liability.
BASIC PAPERWORK I-9
REQUIREMENTS
• Properly complete I-9 for every
new hire since November 6, 1986
FORM 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
Address (Street Name and Number)
City
State
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.
Middle Initial
Maiden Name
Apt. #
Date of Birth (month/day/year)
Zip Code
Social Security #
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 # ___________________________________
Employee’s Signature
Date (month/day/year)
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
Address (Street Name and Number, City, State, Zip Code)
Print Name
Date (month/day/year)
TIPS FOR SECTION 1
• Section 1 must be completed by employee on
or before first day of hire
• Insure 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
• Attestation Box not checked
• “A” number or work authorization date is
missing
• Attestation date is not completed
• Identification information missing
• Incorrect boxes checked
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 abovenamed 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
Business or Organization Name
Print Name
Address (Street Name and Number, City, State, Zip Code)
Title
Date (month/day/year)
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
• Employer under-documents or over-documents
I-9
• Employer accepts faxed copies of documents
• Employer lists US visa instead of I-94 number
in List A
• Signature and date of company rep. is missing
• Employer accepts receipt for EAD extension
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
Form I-9 (Rev. 11-21-91) N
Date (month/day/year)
TIPS FOR SECTION 3
What does NOT need to be reverified?
• Green cards (i.e., permanent resident cards or I551 resident alien cards)
• Driver’s license and other identity documents
• U.S. Passports
MOST COMMON ERRORS ON
SECTION 3
• Reverification not completed in a timely
manner
• Document provided was not acceptable
• Over-documentation
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.
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)
MERGER & ACQUISITION
• New I-9s not required if “successor in interest”:
• Change in location
• Employs some or all of a previous employers
workforce in merger, acquisition or sale of stock or
assets
• Multi-employer association with the same collective
bargaining agreement.
• If new company is successor in interest, then it
assumes the liabilities for the old I-9s.
• To avoid “liability” must complete new I-9s
I-9 Paperwork Penalties
• Penalty: $100 - $1,100 per I-9 for
mistakes or omissions
What is Knowledge?
• Actual Knowledge
Actual knowledge includes knowledge of supervisors at
company
• Constructive Knowledge
Constructive knowledge includes circumstances where the
company "should have known“
Actual Knowledge
• Example: Employee states that he has a
false employment document.
• Even if the employer completes the I-9
employment eligibility verification procedure
properly, it will still be subject to penalties if it
is has knowledge of the unauthorized status
of the employee.
Constructive Knowledge
• Knowledge not limited to actual knowledge
• If employer has knowledge that would lead a
reasonable person to believe that an
individual is not authorized to work, the
employer is under a duty to investigate.
• Example: Employee presents a green card
during I-9 verification but employee later
requests company to sponsor him.
INS Rules – 8 CFR § 274a(1)
• An employer is deemed to have knowledge if:
–
–
–
–
Form I-9 not completed in good faith
Continues to employ alien after work auth expired
Possesses information that alien not auth to work
Acts with reckless and wanton disregard
• Knowledge cannot be inferred from:
– Employee’s foreign appearance or accent
– Rumor or hearsay
Failure to Verify/Reverify
• Employer has constructive knowledge when:
– Employer failed to complete I-9 form and
employer later found to be unauthorized. U.S. v.
American Terrazzo Corp, 6 OCAHO 91 (1989).
– Employer failed to properly complete I-9 form.
U.S. v. Walden Station Inc., 8 OCAHO 1053
(2000).
– Employer failed to reverify work authorization of
employee with time-limited work authorization.
U.S. v. China Wok Rest., 4 OCAHO 608 (1994).
INS (ICE) Notification
• Action is required when employer is informed by INS
(ICE) that employee is illegal alien.
• Court held that employer had a duty to act when INS
verbally provided the employer with information that
various alien registration numbers did not match INS
records. Mester Manufacturing v. INS, 879 F.2d 561
(9th Cir. 1989).
• Irrelevant by what means an employer gains
knowledge from the INS (ICE).
Acting in Reckless and Wanton
Manner
• INS infers knowledge if employer acts with
reckless and wanton disregard for legal
consequences of permitting another individual
to introduce an unauthorized worker into
workforce.
• Employer which fails to make any effort to
satisfy itself that the individual is authorized
to work is liable.
Knowledge of Employees is
Imputed to the Employer
• Employer is chargeable with, and bound by, the
knowledge of its agents if agent acting within scope
of his authority.
• Example: Manager told by employee that he is in
the U.S. unlawfully. Knowledge of manager
regarding illegal status may be imputed to the
company.
Timeliness of Reverification
• Once employer has knowledge, an employer must
exercise due care to verify that alien is authorized
to work.
• Courts have held that “due care” is met if employer
immediately suspends employee and asks him/her
to obtain proof of employment eligibility. If
employee fails to present such documentation
within a reasonable time, employee should be
terminated.
Civil Penalties for Hiring
Violations
• First offense: Civil fine of $250 to $2,000
per unauthorized worker
• Second offense: Civil fine of $2,000 to
$5,000 per unauthorized worker
• Third or more: Civil fine of $3,000 to
$10,000 per unauthorized worker
• Debarment from government contracts
Criminal Liability for
“Pattern and Practice”
• Regular, repeated and intentional
activities to hire/continue to hire illegal
aliens can be punished criminally.
• “Pattern or practice”: In addition to civil
penalties, criminal penalties of up to $3,000
per worker and up to six (6) months
imprisonment
Additional Criminal Liability
•
•
•
•
•
•
Document Fraud
False Statements
Fraud
Harboring
Conspiracy
Perjury
Personal Liability for Actions
• INS defines the term “employer” to include a
person or entity, including an agent or
anyone acting directly or indirectly in the
interest of an employer.
• Sanctions may be extended beyond the
employing entity, including corporate officers.
Common Problems and Strategies
• Employee comes to employer with new
SSN that is different than one employer
was given at time original I-9
completed.
Common Problems and Strategies
(cont.)
• An employee informs employer that
another worker is an “illegal”
• Employer cannot make further inquiry
about employment eligibility or request
additional documents from employee
based on mere hearsay and rumor.
• IRCA does not require further inquiry in
these circumstances.
Common Problems and Strategies
(cont.)
• Supervisor recognizes workers who
were included in a prior INS raid
Common Problems and Strategies
(cont.)
• During a social engagement outside of
the company, supervisor learns that
employee is illegally in the U.S.
OTHER PENALTIES
• Civil liability for document fraud
• Debarment from government
contracts
DISCRIMINATION
ISSUES
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: $100 - $1,000
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
NO DISCRIMINATION IF
REQUIRED BY:
•
•
•
•
•
Law
Regulation
Executive Order
Government Contract
As Determined By Attorney General
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 nonimmigrant visas such as F-1, J-1, H-1,etc.)
yes____
no____
WHAT TO ASK: SAMPLE
FORMAT #2 (cont.)
• If employer is willing to consider
sponsoring applicant outside “Protected
Class”, then you may also ask, “If your
answer was ‘no’, do you have authorization
to work, and if so, please explain”
Update on I-9 Compliance
May 29, 2002

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