Embed Size (px)
Citation preview
ADVANCED DISCUSSION ON ADVISING IN THE AREA OF I-9 AND E-VERIFY COMPLIANCE
Including hot topics and the latest developments
RICHARD A. GUMP, JR. HARRY J. JOE LAUREN B. ALLENLAW OFFICES OF RICHARD A. GUMP, JR. JACKSON LEWIS P.C. LAW OFFICES OF RICHARD A. GUMP, JR.
[email protected] [email protected] [email protected]
WWW.RICKGUMP.COM WWW.JACKSONLEWIS.COM WWW.RICKGUMP.COM
THE CORNERSTONE OF RISK MANAGEMENT
What is an I-9?
• All U.S. employers are required to complete Form I-9 for each individual they hire for employment in the U.S. regardless of citizenship.
• Employees must present documents to establish and verify identity and employment eligibility.
GENERAL PRINCIPLES
• Employer must verify the employment eligibility of all employees hired after November 6, 1986.
• Employer must retain I-9s for 3 years after employee begins work or 1 year after date of termination – whichever is longer.
• Treat all employees the same.
• Do not commit fraud.
COMMON PITFALLS
• Failure to complete the I-9
• Document information not recorded in Section 2
• Over documentation in Section 2
• Date of hire not provided
• Keeping I-9s too long
• Treating “foreign” employees differently when completing I-9
• Failure to re-verify
• Preparer does not sign I-9 as required
• Inconsistencies
EMPLOYER BEWARE!• In the past 4 years more than 10,000 employers have been audited.
HSI Fiscal Year 2012 Accomplishments*• HSI made 520 criminal arrests tied to worksite enforcement investigations.• Of the individuals criminally arrested, 240 were owners, managers,
supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud.
• HSI served 3,004 Notices of Inspection and 495 Final Orders, totaling $12,475,575.00 in administrative fines.
• ICE debarred 376 business and individuals for administrative and criminal violations.
• HSI conducted 2,421 IMAGE outreach presentations to 15,906 employers.*
http://www.ice.gov/news/library/factsheets/worksite.htm
ICE AUDITS• How do audits originate?
• Randomly• Anonymous tip• From the public• From competitors • From employees (often
disgruntled)
• What can ICE request?• Forms I-9• Employee rosters and payroll
verification documents (W-2s & 1099s)
• Weekly work schedules• Company’s organizational chart• Articles of incorporation• Written policies• Contracts for labor
INSPECTION PROCESS*1. Notice of Inspection (NOI)
• Served upon an employer compelling him/her to produce Forms I-9.• NOTE: By law, employers are provided with at least 3 business days
to produce the requisite documents.
2. ICE agents or auditors conduct an inspection of I-9s.• When technical/procedural violations are found, an employer is given
10 business days to make corrections.• All substantive and uncorrected technical violations may warrant
employer fines.• Employers who knowingly hire or continue to employ
unauthorized workers will be required to terminate workers, possibly fined, and in certain situations could be criminally prosecuted.
* http://www.ice.gov/news/library/factsheets/i9-inspection.htm
NOI sample found at: http://online.wsj.com/public/resources/documents/ICEAudit091213.PDF
INSPECTION PROCESS*3a. Notice of Inspection Results
• AKA “Compliance Letter”
3b. Notice of Suspect Documents (NOSD)• Tells employer that ICE has determined that certain employee(s) are unauthorized to
work.• Additional documentation can be provided to prove work authorization.
3c. Notice of Discrepancies• ICE’s audit could not determine the work eligibility of a certain worker(s).• Employer must provide this letter to employee and give employee opportunity to
present work authorization documents.
3d. Notice of Technical or Procedural Failures• Identifies technical violations and provides employer with 10 business days to
correct.• If left uncorrected, technical violations will be categorized as substantive violations.
*http://www.ice.gov/news/library/factsheets/i9-inspection.htm
NOSD sample found at:http://www.immigrationsolutions.com/wp-content/uploads/2009/04/ICE-Notice-of-Suspect-Documents.pdf
INSPECTION PROCESS*
4a. Warning Notice• Issued when substantive violations were identified and there is an
expectation of future compliance by employer.• Monetary penalties are deemed not warranted.
4b. Notice of Intent to Fine (NIF)• May be issued for the following:
• Substantive violations;• Uncorrected technical violations; and• Knowingly hire and continuing to employ violations.
*http://www.ice.gov/news/library/factsheets/i9-inspection.htm
SETTLEMENT OR HEARING?
• Strategies for Employers Who Receive NIF:
1. Negotiate a monetary settlement with ICE;
2. Employer participation in IMAGE to eliminate or mitigate
fine amount; and
3. Request OCAHO hearing within 30 days of receipt of NIF to enhance negotiating leverage.
CIVIL FINES AND CRIMINAL PENALTIES FOR FORM I-9 VIOLATIONS
Civil Violations First Offense Second Offense Third Offense
Minimum Maximum Minimum Maximum Minimum Maximum
Hiring or continuing to employ a person, or recruiting or referring for a fee, knowing that the person is not authorized to work in the United States.
$375 for each worker. $3,200 for each worker. $3,200 for each worker. $6,500 for each worker. $4,300 for each worker. $16,000 for each worker.
Failing to comply with Form I-9 requirements.
$110 for each form. $1,100 for each form. $110 for each form. $1,100 for each form. $110 for each form. $1,100 for each form.
Committing or participating in document fraud.
$375 for each worker. $3,200 for each worker. $3,200 for each worker. $6,500 for each worker. $3,200 for each worker. $6,500 for each worker.
Committing document abuse. $110 per violation. $1,100 per violation. $110 per violation. $1,100 per violation. $110 per violation. $1,100 per violation.
Unlawful discrimination against an employment-authorized individual in hiring, firing, or recruitment or referral for a fee.
$375 per violation. $3,200 per violation. $3,200 per violation. $6,500 per violation. $4,300 per violation. $16,000 per violation.
Asking an employee for money guaranteeing that the employee is authorized to work in the United States, also called an indemnity bond. Pay $1,100 for each bond the employee paid to the employer.
Refund the employee the full amount of the bond. If the employee cannot be found, this refund will go to the U.S. Treasury.
Criminal Violations First Offense Second Offense Third Offense
Engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens.
Up to $3,000 for each unauthorized alien.
Up to 6 months in prison for the entire pattern or practice.
Up to $3,000 for each unauthorized alien.
Up to 6 months in prison for the entire pattern or practice.
Up to $3,000 for each unauthorized alien.
Up to 6 months in prison for the entire pattern or practice.
NEGOTIATING WITH ICE• The fine assessment for paperwork violations is only a starting point!
• Things to consider:• Document any conversations with the ICE agent.• You have 30 days to act so do not procrastinate.• Five-Factor Test to enhance or mitigate fines:
FACTOR AGGRAVATING
MITIGATING NEUTRAL
Business Size +5% -5% +/- 0%
Good faith +5% -5% +/- 0%
Seriousness +5% -5% +/- 0%Unauthorized
Aliens+5% -5% +/- 0%
History +5% -5% +/- 0%Cumulative Adjustment +25% -25% +/- 0%
NEGOTIATING WITH ICE (CONT.)
• Be aware of prior OCAHO decisions.
• Most recent OCAHO rulings have involved the issue of fine enhancements and have resulted in lower fines than what ICE had proposed.
• Negotiate from strength.
• Burden of proof on party seeking fine enhancement or mitigation.
• Substantive violations alone do not support aggravation of fines.
• No limitation on mitigating factors that can be considered.
WORKSITE ENFORCEMENT FINES
SUBMITTED TO THE BURLINGTON FINANCE CENTER FYS 2009-2012
OIG-14-33 WWW.OIG.DHS.GOV
WHAT CAN WE EXPECT FROM ICE MOVING FORWARD?
• Continued focus on employer compliance through audits.• ICE “initiatives.”
• Comprehensive Immigration Reform and E-Verify.• Web of local, state and federal law.
• Challenges for employers regarding changing guidance of the agencies.
• I-9 Central, policies, etc.
IMAGEICE MUTUAL AGREEMENT BETWEEN
GOVERNMENT AND EMPLOYERS
PURPOSE AND GOAL
• To assist employers in developing a more secure and stable workforce
• To enhance fraudulent document awareness
IMAGE CERTIFICATION
• For typically large and exceptional employers.
• Selected employers serve as industry and community role models.
• Formal IMAGE Program Certification upon enrollment and completion of membership requirements.
IMAGE BENEFITS
• Waiver of fines for substantive violations found in fewer than 50% of audited I-9s.
• Mitigated level of fines for $110 for substantive violations in more than 50% of audited I-9s.
• No more I-9 audits for 2 years.
• I-9 Compliance training and materials.
• Public industry recognition as IMAGE member.
APPLICATION REQUIREMENTS
• Detailed corporate information • Identification of subsidiaries and affiliates• Disclose prior ICE I-9 audits and results• Describe current I-9 compliance practices and training
EMPLOYER OBLIGATIONS
• The employer must submit to an I-9 Inspection and Audit. NOTE: No immunity from civil and criminal penalties.
• The employer must enroll in the E-Verify program within 60 days of execution of the IMAGE Partnership Agreement with ICE.
• The employer must agree to maintain a written policy for I-9 compliance and conduct internal I-9 audits
E-VERIFYStill Voluntary?
E-VERIFY• Federal law has yet to require all employers to utilize E-Verify,
but as of January 2014, more than 500,000 U.S. companies use E-Verify.
• NOTE: E-Verify does not replace Form I-9 compliance.• It is a free, web-based program that allows employers to further verify
their employees’ employment eligibility once hired.
• E-Verify compares the data from the employee’s completed Form I-9 with that of the Social Security Administration as well as the U.S. Department of Homeland Security (DHS).
E-VERIFY PERFORMANCE
The statistics in the adjacent chart report E-Verify case processing results in Fiscal Year 2013 (Oct 2012 – Sept 2013). All figures are expressed as a percentage of the total number of cases submitted and percentages are rounded. http://www.uscis.gov/e-verify/about-program/performance
E-VERIFY PERFORMANCE (CONT.)
• Most employees are automatically confirmed as work authorized.• 98.81 percent of employees are automatically confirmed as authorized to work (“work authorized”)
either instantly or within 24 hours, requiring no employee or employer action.• 1.19 percent of employees receive initial system mismatches, called a Tentative Non-Confirmation
(TNC).
• Of the 1.19% of employees who receive initial system mismatches:• 0.22 percent of employees are confirmed as work authorized after contesting and resolving the
mismatch.• 0.98 percent of employees are not found work authorized.
• Of the .98% of employees not found work authorized:• 0.78 percent of employees receive initial mismatches and do not contest the mismatch, either
because they choose not to or are unaware they can contest. As a result, they are not found work authorized.
• 0.01 percent of employees receive and contest initial mismatches and are not found work authorized.
• 0.19 percent of employees receive initial mismatches that remain unresolved because employers closed the cases as “self- terminated” or as “requiring further action” by either the employer or employee.
Statistics found at: http://www.uscis.gov/e-verify/about-program/performance
E-VERIFYAdditional Benefits to
Using E-Verify• Extra security for employers;
• Additional insulation from liability should the employer be audited;
• Improved level of Form I-9 compliance; and
• Provides documentation of good corporate citizenship.
Additional Concerns to Using E-Verify
• Further training for employees who will administer the program;
• E-Verify is not perfect;
• Possible liability exposure for employers who incorrectly utilize E-Verify; and
• Allows the government to track a company’s hiring data, which can lead to governmental audits. (And these audits can lead to referrals to other agencies.)
E-VERIFY MONITORING & COMPLIANCE BRANCH (M&C)
• Mission of M&C – Oversee usage of the E-Verify system to detect and reduce misusage.
• ICE and OSC receive referrals from M&C.
• In 2012, M&C sent over 62,000 emails to employers and initiated or responded to 7,200 telephone calls.
M&C COMMON ERRORS NOTED
• Creating duplicate cases for same employee.
• Immediately terminating those receiving a TNC.
• Failure to create a case by the third day after employee starts work for pay.
• Creating cases for employees hired before E-Verify participant is enrolled in E-Verify.
• Failure to print TNCs.
• No review of acceptable documents or a document with a photo.
OSC RECENT ACTIONS BASED UPON E-VERIFY REFERRALS
• Resolution letter with staffing agency for wrongful termination – company terminated employee after receiving TNC.
• Two resolution letters with 2 farm labor contractors for document abuse – large percentage of non-citizens who presented “List A” documents.
• Resolution letter with real estate development company for improper use of E-Verify on certain existing employees.
E-VERIFY: MOVING FORWARD
• With enhanced enforcement actions by OSC and M&C, it is critical for E-Verify employers to conduct an internal assessment of compliance with the E-Verify process.
• E-Verify provides free training and webinar updates for employers.
ASSISTING EMPLOYERS:THE I-9 AUDIT
1) Need copies of I-9s and supporting documentation.• Encourage employers to keep photocopies of documents presented for I-9
(front and back).
2) Prepare and maintain spreadsheet to document audit findings:
Employee Name
SS# E-Verify Start Date
E-Verify Date
List A List B List C Form I-9 Concerns
Authorized Rep.
Doe, John 555-55-5555
YES 8/23/2010 9/01/2010 PRC No SS card Failed to sign/date Section 1
Jane Doe
ASSISTING EMPLOYERS (CONT.)
Let’s Talk Forensics
COMMON I-9 MISTAKES
Section 1• Employee does not enter
A#/USCIS # in status box area
• Employee does not sign/date attestation area
• Employee lists DOB instead of signature attestation date
• Employee does not complete Section 1 on 1st day of employment
• Employee fails to check correct status box OR does not check a status box at all
• Preparer/Translator does not complete appropriate area
Section 2• Employer does not enter
acceptable List A or List B and List C document
• Employer does not enter date employment began (first day for pay)
• Employer does not sign, date and print name in certification area
• Employer does not complete Section 2 by the 3rd business day after the date employee began employment
• NOTE: if employee is hired for 3 business days or less, Section 2 must be completed at the time employee started employment
Section 3• Employer does not complete
Section 3 until after the employee’s work authorization has expired
• Employer does not enter the document title, number or expiration date for acceptable documentation presented
• Employer does not enter the date of rehire (if applicable)
• Employer does not sign or date certification area
GENERAL TIPS FOR COMPLETING I-9S
• Information on form is clear and can be read.
• Section 2 – date employee began employment matches the date in payroll records.
• Maintain clear photocopies of documentation retained with Form I-9.
• Abbreviations are permitted, but ensure they are widely understood.• Social Security Administration = SSA• Texas Dept. of Public Safety = TDPS
• Use current version of Form I-9.
• Only use the English version unless the form is being completed in Puerto Rico.
• You can use the Spanish version as a concurrent guide to assist employees.
CORRECTING FORM I-9• Use a different color ink.
• White out or correction tape should NEVER be used.
• Initialed and dated by the individual making the correction.• Best Practice – Indicate a reason for the correction (e.g. “Corrected per audit”).
• Incorrect information should be crossed out with a SINGLE LINE.
• IMPORTANT: Where signature dates are missing, DO NOT BACK DATE!• Exception – in Section 2, which requests date employee began working.
• If corrections are so significant that would deem I-9 illegible, complete new I-9 and attach to old I-9.
GUIDANCE FOR EMPLOYERS
Binder(s) 1
For ACTIVE Employees who do not need
reverification • Use alphabetical tabs to
keep I-9s in order.
Binder(s) 2
For ACTIVE Employees who do need reverification
• Use month/year tabs to keep track of reverification dates.
• Additionally need another “tickler” system to notify of impending expiration date. (e.g. 90 days out)
Binder(s) 3
For INACTIVE Employees
• Use month/year tabs to keep track of disposal date.1. Date the employee began work for
pay1. _______
A. Add three years to the date on line1.
A. ____
2. The date employment was terminated
2. _______
B. Add one year to the date on line 2.
B. ____
3. Which date is later; A or B? 3. _______
C. Enter the later date. C. ____*Keep I-9s separate from personnel files. *If employer utilizes E-Verify, attach case verification print-out to I-9.
Richard A. Gump, [email protected]
Harry J. [email protected]
Lauren B. [email protected]
www.rickgump.com
QUESTIONS?
