www.ailany.org

www.ailany.org

AGENDA-MAY 7TH CLE I-9 WORKPLACE COMPLIANCE COMMITTEE What is an I-9 and how to complete it? I-9 Compliance and trends What to do when ICE arrives? Audit, Notice, Penalties, etc I-9 from the standpoint of the employer 1 The I-9 form and its history and statutory basis 2 STATUTORY AUTHORITY for the I-9

Immigration Reform and Control Act of 1986 Obligations imposed on employers: Prohibits knowingly hiring or continuing to hire unauthorized workers Employers may be liable for constructive knowledge (8 USC 1324a) To verify the identity and employment eligibility of new hires post Nov. 6, 1986 (8 USC 1324a) Verification must be documented on Form I-9 To avoid immigration-related unfair employment practices (8 USC 1324b) 3 GOVERNMENT AGENCIES INVOLVED

USCIS ICE Immigrant and Employee Rights (IER) Section, USDOJ Civil Rights Division (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices), enforces the anti-discrimination provisions and has independent ligation authority 4 LIST OF ACCEPTABLE DOCUMENTS 5 HOW TO COMPLETE AN I-9

6 FORM I-9 SECTION 1 7 TIPS FOR SECTION 1 Section 1 must be completed by employees on or before first day of hire even if they dont have their documents Ensure that employee checks box, and signs and dates the form If employee indicates (s)he is permanent resident, enter the USCIS Number or A-Number If employee is alien authorized to work, provide the A Number or the I94 number If I-94 is issued at a port-of-entry (i.e., airport), enter

Alien Registration Number (A#); or foreign passport information; or I-94 number Otherwise write N/A in the space provided for the passport information 8 MOST COMMON ERRORS ON SECTION 1 Name in wrong order Address incomplete Attestation not checked or Number(s) not provided

Signature missing Date of birth instead of current date or date missing 9 FORM I-9 SECTION 2 1010 TIPS FOR SECTION 2 Section 2 must be completed by company representative within

3 business days from date of hire Verification of identity and work authorization New hire must be physically present Company representative must review original documents Attach copies of documents presented to the I-9? 11 MOST COMMON ERRORS ON SECTION 2 Too many documents requested or List A, B, or C document information left blank

Column B and C reversed Document number or expiration date missing 12 MOST COMMON ERRORS ON SECTION 2 (CONTD) Date of hire missing Employer name, address,

signature, or date missing 13 REVERIFICATION Required for all employees with expiring work authorization Not to be confused with expiring documents New M-274 (I-9 Handbook for Employers) directs employers to use Section 3 instead of new form: https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/EVerify_Native_Documents/E-Verify%20Manuals%20and%20Guides/M-274-Handbook-forEmployers.pdf Permanent residents Only reverify if employee presents temporary I-551 stamp Do not reverify after expiration of green card, even if status is conditional Refugee/Asylee

Reverify only if employee presents EAD or I-94 receipt Do not reverify if employee presents List B and List C combination 14 FORM I-9 SECTION 3 Only reverify employment authorization Must reverify on or before date employees current authorization expires 15 MOST COMMON ERRORS ON SECTION 3 Over-documentation

(do not reverify identity) Revertification not complete timely Document provided was not acceptable or document title, number or expiration date missing or incomplete Employer signature or date missing 16 DOCUMENT

TIPS All documents presented must be unexpired (after 4/3/09) ID card must be issued by a federal/state/local government agency Voters registration card need not have photo to confirm identity Laminated cards are acceptable unless otherwise prohibited by language on the card Birth certificate must be issued by state or local government authority (not hospital issued) 17 RETENTION OBLIGATIONS Employer must have a Form I-9 for every current employee (unless they were hired prior to November 7, 1986).

8 U.S.C. 1324a (b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. See also 8 C.F.R. 274a.2 Following employees termination, employer must retain I-9 for the later of 3 years from the date of hire or 1 year after the date of termination 18 CORRECTING FORMS I-9 Make corrections on original Form I-9 Initial and date all corrections Employees to make all corrections to Section 1 Do not back date Do not use correction fluid

Cross-outs (but not black-outs) are ok See 8 C.F.R. 274a and M-274 (I-9 Handbook for Employers) 19 RECEIPT RULE FOR LOST, STOLEN OR DAMAGED DOCUMENTS 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 Except for STEM OPT Must see original of replacement document within 90 days of hire (docket this date)

See 8 C.F.R. 274a and M-274 (I-9 Handbook for Employers) 20 REQUESTING EXTENSIONS OF STAY FOR NIV CATEGORIES The 240-Day Rule Employees in certain NIV categories (i.e., H-1B, E-1, etc.) may continue to work during a 240-day "grace period after filing extension of status request (on I-129). 8 CFR 274a.12 Employment authorization ends immediately if USCIS denies the extension of status request Reverification necessary at earlier of Approval of extension request, or End of 240-day period Best practices

Retain with existing Form I-9: A copy of the new Form I-129 Proof of payment for filing a new Form I-129 Evidence that you mailed the new Form I-129 Receipt of filing of new Form I-129 issued by USCIS Write on the margin of the I-9 next to Section 2 240-Day Ext. and the date the Form I-129 was submitted to USCIS 21 AUTOMATIC EXTENSION An EAD is extended automatically if: The basis for employment is one of 15 categories. See https://www.uscis.gov/working-united-states/automatic-employmentauthorization-document-ead-extension EAD renewal is under a category that is eligible for an automatic 180-day

extension (see the list of categories below); and The Category on the current EAD matches the Class Requested listed on the Notice of Action. Caveat: USCIS does not always indicate the category. 22 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 are met: Foreign national entered legally Foreign national hasnt worked without authorization Foreign national is maintaining valid status (i.e. still employed) on the day that CIS receives the COE petition Non-frivolous petition is filed before I-94 card expires

See INA 214(n)(1), (n)(2)(A)-(3). See also 8 CFR 103.2(a)(7)(i). 23 I-9 COMPLIANCE AND TRENDS 8 CFR 274a.9 24 ENFORCEMENT TRENDS Restrictive immigration enforcement laws as reaction to perceived federal inaction (i.e., AL, AZ, FL, GA) Over half of all states have some E-Verify requirements U.S. Supreme Court upheld states right to require E-Verify Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) Concerns to your HR professionals Federal preemption

Inconsistent requirements in various jurisdictions Incompetent enforcement Lack of understanding on the part of state or local officials Unnecessary disruption to business 25 The Overzealous HR Rep Common I-9 Mistakes OVER DOCUMENTATION CAN AMOUNT TO DISCRIMINATION If an employee document dumps, the HR representative should refuse to select appropriate list A, B or C documents. They should push the documents back across the table and ask the employee to make the appropriate selection ICE can review I-9s to determine whether the exact

same documents were used to complete all I-9s, which may be evidence of a pattern or practice. No corrections are possible. 26 ICE Audits 27 HOW DOES AN AUDIT WORK Notice of inspection Time and scope of the audit Work with agents to make scope manageable 72 hours response time unless extension granted ICE subpoena

Inspection and audit Notice of intent to fine/warning Negotiation civil penalty matrix 25% upward or downward adjustment Discretion still exists United States v. Subway Restaurant #3718 See 8 CFR 274a.9, 270.2 28 FORM I-9 INSPECTION PROCESS Notice of Inspection (NOI) Notice of Suspect Documents Inspect Forms I-9 Notice of Discrepancies Violations

Yes No Compliance Substantive Violations Technical Violations Notice of Intent to Fine Warning Notice 29 What happens when employers

HIRE UNAUTHORIZED ALIENS PENALTIES PENALTIES CRIMINAL PROSECUTION ADMINISTRATIVE SANCTION Felony and Misdemeanor Hiring Violations DEBARMENT Prohibits Federal

Contracts 1-3 years. 30 KNOWING HIRE/CONTINUING TO EMPLOY PER VIOLATION FINE SCHEDULE (violations occurring after November 2, 2015)- See 8 CFR 270.3 Standard Fine Amount Knowing Hire and First Tier Continuing to Employ $548 - $4, 384 Violations Second Tier $4,384 - $10,957

Third Tier $6,575 - $21,916 0% 9% $548 $4,384 $6,575 10% 19% $1,140 $6,322 $8,547

20% 29% $1,754 $7,232 $11,177 30% 39% $2,411 $8,174 $13,807 40% 49%

$3,069 $9,094 $16,568 50% or more $3,726 $10,026 $19,242 31 SUBSTANTIVE/UNCORRECTED TECHNICAL VIOLATIONS

FINE SCHEDULE (violations occurring after November 2, 2015) Substantive Verification Violations 1st Offense $220 - $2,191 2nd Offense $220 - $2,191 3rd Offense + $220 - $2,191

0% 9% $220 $1,096 $2,191 10% 19% $548 $1,315 $2,191 20% 29%

$876 $1,534 $2,191 30% 39% $1,205 $1,753 $2,191 40% 49% $1,534

$1,972 $2,191 50% or more $1,862 $2,191 $2,191 32 ENHANCEMENT Factor

Aggravating Mitigating Neutral Business size + 5% - 5% +/- 0% Good faith + 5%

- 5% +/- 0% Seriousness + 5% - 5% +/- 0% Unauthorized workers + 5% - 5%

+/- 0% History + 5% - 5% +/- 0% Cumulative adjustment + 25% - 25%

+/- 0% 33 Common SUBSTANTIVE VIOLATIONS Violations will incur fines Missing or untimely completion of the Form I-9 Employee name missing Failure of employee to check a box in Section 1 Failure of an employee to sign Section 1 Improper document(s) accepted Section 2 not timely signed or completed Section 3 not timely completed or signed if applicable 34

Common TECHNICAL VIOLATIONS Maiden name, address or date of birth missing No A#, admission number or expiration date in attestation section of box 3 or 4 checked (box 2 or 3 on older forms), if copies of documents attached Section 1 not dated or date of hire in Section 2 missing Document information incomplete (if copies attached) No title, business name or address Employer signature not dated 35 MINIMIZING LIABILITY Conduct a self audit and make corrections before ICE issues Notice of Inspection Keep copies of supporting documents in order to invoke Sonny Bono Amendment for technical violations. In 1996, Congress passed an

amendment to the INA introduced by Congressman and restaurant owner Sonny Bono to provide employers with the opportunity to correct technical or procedural I-9 violations if the deficiencies occurred in the context of a good faith effort to comply with I-9 rules. Better late than never Complete new forms if one is not found in the file Negotiate when you can - ICE has self-imposed limit on discretion to deviate from initial assessment of fine 36 REVIEW OF ICE DETERMINATION ICE-imposed fines may be appealed to ALJ with the Office of the Chief Administrative Hearing Officer Recent trend suggests significant chance of fine reduction by ALJ,

especially when appellant is small business ALJ declines to be bound by ICE matrix Reduction of fine by more than 80% at times But also has enhanced penalty when more evidence of bad faith comes into light after appeal Employers must balance likelihood of success with cost of litigation OCAHO decisions are appealed to the U.S. Court of Appeals for the circuit where violation occurred 37 I-9 BEST PRACTICES FROM THE STANDPOINT OF THE EMPLOYER. 38

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