I 9 Training

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Stacey L. Spector, Esq.

Jill K. Soubel, Esq.

The Rudnick Spector Firm

1608 Walnut St., Ste. 1700Philadelphia, PA 19103T: 215-546-0880 F: [email protected]@rudnickspector.com

*I-9 Training

© 2011 Rudnick Spector Firm

mailto:[email protected]

mailto:[email protected]

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Page

*Fundamentals of Form I-9 Completion 3-8

*Employee Completion of Form I-9 9-18

*Employer Completion of Form I-9 19-20

*Retention & Storage 21

*Electronic Storage 22

*E-Verify 23-24

*Reverification 25-29

*Internal Audit 30-31

*Common Errors & Corrections 32-34

*Resources 36

*TABLE OF CONTENTS


*Why Complete I-9?

* Immigration Form

*Purpose: Employer must verify employee’s identity and employment eligibility after November 6, 1986

* If I-9 completed correctly, employer not liable if employee not actually legally authorized to work

*May not knowingly hire or continue to employ any unauthorized worker

• “Knowingly” = actual knowledge or “should have known” constructive knowledge

*Deceptively simple-looking

*Monetary and criminal penalties possible for incorrect completion

3 © 2011 Rudnick Spector Firm

*Who Completes I-9?

* All employers must complete for employees to perform labor or services in return for wages or “remuneration”

* Remote Hires:

• Company may designate agents to perform I-9 responsibilities, but is ultimately liable. Agents can be notary publics, accountants, attorneys, etc

• Agent must still review original documents submitted by employee. Form I-9 should not be mailed or faxed to employee for completion

* Exempt Employees:

• Grandfathered employees

• Casual domestic workers

• Contractors (1099) & their employees

• Employees not physically present in the U.S.

* Failure for employee to complete I-9 is grounds for termination


*Discrimination

* Prohibited from discriminating on basis of national origin or citizenship status in hiring, recruiting or discharging employees. Since 9/30/06, DHS must prove employer had “intent” to discriminate against employee (i.e., by requesting more or different documents during the I-9 verification process)

* Only protects U.S. citizens, U.S. permanent residents, temporary residents, refugees in I-9 process

* Nonimmigrant not within “protected” class covered by discrimination, but could be under Title 7

* Not unfair immigration employment practice for Company to choose U.S. citizen over foreign national if two are equally qualified


*What Version of I-9?

*Spanish version may only be used in Puerto Rico

Version Valid From To

August 7, 2009 8/7/2009 8/31/2012

February 2, 2009

4/3/2009 Present

June 5, 2007

11/26/2007 4/2/2009

May 31, 2005

11/21/1991 11/25/2007


*Basic Form Completion

*Employer & Employee complete all requested information in Sections 1-3

*Failure to complete required information is a violation

*Form must be completed within the first three days of actual employment

• Employment Day #1: Employee completes and signs Section #1

• Employment Days #1-4: Employee provides Section #2 documents, Employer reviews documents, Employer completes and signs Section #2

*Process can be started anytime between job acceptance and first day of employment. If I-9 process begun before 1st day of employment, must do so for all employees


*Section 1: Employee

Completion

*Employee must sign/date Form I-9 by first day of employment

*Employee may complete I-9 before first day as long as I-9 process is same for all job applicants

*Employee has 3 business days, if necessary, to produce original document(s) to satisfy I-9 unless granted 90 additional days based on receipt rule. If employee fails to comply, must be terminated

*Company may instruct employees prior to start date re: need to arrive on day 1 of employment with appropriate documents for I-9 purposes


*Section 1: Employee

Completion

*Employee prints last name, first name, middle initial, maiden name, and address

*Employee completes date of birth

*Employee completes social security number

*Employee, under penalty of perjury, checks off box as to his/her status in the U.S.

*Employee signs/dates Form I-9

*Preparer and/or translator certification—if used by employee to fill out Section 1, translator/preparer signs, dates, and provides requested information in box


*Section 2: Acceptable Documents

* Employee must present original, unexpired documents

* Employer must examine documents to determine if they are (1) genuine and (2) related to employee

* List A: document establishes both identity and employment authorization—employee who presents List A document need not present any other documents

* List B: document establishes identity only. List B document must be presented in conjunction with List C document

* List C: document establishes employment authorization only and must be presented in conjunction with List B

* For E-Verify: If you accept a List B document, it must have a photo


*Expired Documents

*You may not accept expired documents

*Except:

• Automatic Extension of Employment Authorization Document (I-766 card) for Temporary Protected Status

• Automatic Extension of STEM OPT extensions for F-1 students until USCIS makes decision or 180 days

• Permanent Resident Cards for Conditional Permanent Resident with receipt for Petition to remove conditions that extends work/travel authorization

• When these extensions expire, you must reverify


*Receipt Rule

*Employer may accept a receipt in limited circumstances:

• All Employees: Original document if lost, stolen, or damaged, and thereby gain 90 additional days from hire (List A, List B, or List C)

• Green Card holder: I-94 with temporary I-551 stamp

• Refugee: Form I-94 or I-94A with unexpired refugee admission stamp

• Still complete I-9 based on receipt

• To “reverify”: Do not complete Section #3. Cross out word receipt in Section #2 and complete information.

*Rule does not apply to employee presenting new EAD card or EAD renewal (i.e., L-2/E-2, I-485, F-1 OPT) or Social Security Cards


*Social Security Card

*Social Security Card (“SSC”) on List C, but must be unrestricted

*SSC stating “valid only with DHS (or INS) authorization” does not satisfy Form I-9 List C without additional documentation

*SSC card stating “not valid for employment” does not satisfy Form I-9 requirements

*IRS individual taxpayer ID number (ITIN) not employment eligibility verification document

*For E-Verify: If the employee does not have SSC, employee may produce official document from SSA stating that SSC has been applied for


*Green Cards

*Prior to 1989, DHS issued Green Card (“GC”) with no expiration date

*Post 1989, DHS issued GCs that expire every ten years (Form I-551)

*GCs are not reverified upon expiration


*Section 2: Employer

Completion

* No later than close of fourth business day, Company completes Section 2 of Form I-9

* Company examines document(s) presented by employee, and inspects document(s) to make sure original, genuine, and relate to employee

* Company cannot require employee to provide certain documents from List

* Company fills in document title, issuing authority, number, and expiration date (if any) in Section 2

* Company completes Certification, including date employment begins (in Certification), signs and dates Section 2 of Form I-9


*Retention & Storage

* Company must retain I-9 for at least 3 years from hiring or for one year after employment ends—whichever is later

* Retention date can only be determined at time employee leaves. To calculate, Company adds 3 years to hire date. To calculate second date, Company adds 1 year to end date. Whichever of two dates is later is date until which Company must retain Form I-9

* Organize & Update

• I-9s for current employees

• I-9s for employees with work authorization expiration date for reverification

• I-9s for terminated employees that may require purging/destruction

* I-9 Forms should be kept separate from employee personnel files to avoid discrimination charges (i.e., information concerning employees’ age and national origin) & to facilitate production if audited


*Electronic Storage

* Employers may use paper system, electronic system, or combination to store Forms I-9.

* Benefits

• Prevents costly I-9 errors

• Increases I-9 efficiency

• Produces compliance reports to be reviewed by counsel/internal audit

• Ensures timely I-9 reverification

• Seamlessly integrates with E-Verify

* An electronic storage system must:

• Include controls to ensure integrity, accuracy and reliability of system

• Include controls to detect and prevent unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of electronically stored Form I-9

• Include controls to ensure audit trail so any alteration or change to form since is electronically stored and can be accessed if audited

• Include inspection and quality assurance program that regularly evaluates system, and includes periodic checks of electronically stored Forms I-9

• Include detailed index of all data so any record is accessed immediately

• Produce high degree of legibility when displayed or copied


*E-Verify

* E-Verify is completed at this point in I-9/E-Verify process

* E-Verify • Free internet-based system that employers use to confirm legal status of

newly hired employees.

• System compares SSN data and DHS immigration databases to information entered on Form I-9 to confirm employee matches.

• MOU

• STEM OPT F-1 students

* Federal Contractor E-Verify Rule

• Federal contractors who are awarded contract on or after 9/8/09 are subject to E-Verify, if contract:

• Has performance period of more than 120 days,

• Value exceeds $100,000, and,

• At least some portion of work under contract is performed in U.S.

• Subcontractors must also E-Verify if working on federal contract and contract is for at least $3,000 in services or construction

• Must E-Verify within 30 days after contract is awarded and begin to use within 90 days

• Must verify all new hires and existing employees assigned to affected contract


*E-Verify Pros & Cons

*Pros

• Presumption that employer is compliant with I-9 requirements

• Allows F-1 students to have additional 17-months of OPT time

• Can E-Verify one site or entire company

*Cons

• Another step in on-boarding processing

• E-Verify very good with U.S. citizens, but terrible with verifying employment for foreign nationals

• Time consuming process to clear-up nonconfirmations


*Section 3: Reverification

*Can be used for reverification, rehires, updates in circumstances

*Company obligated to reverify employment authorization for employees who have time-limited employment (i.e. nonimmigrants).

*Company completes Section 3 of Form I-9 by filling in new name for employee (if applicable) and/or date of rehire (if applicable).

*Company examines document(s) and fills in document title, number and expiration date (if any) in Part C of Section 3.

*Company reads, signs & dates Section 3 of Form I-9.

*Must be completed before work authorization expires

*Do not reverify Green Cards & U.S. passports


*Section 3: Name Change

Reverification

*Not required to reverify

*If you reverify, do not need to review document with new name. If you take document, retain with I-9 Form and ensure document pertains to employee


*Expiring Non-Immigrant

Documents

* Must reverify before document expires

* Employee must present List A or List C document showing continued employment authorization

* NIV work authorization automatically extended for 240 days for employee who files timely extension (i.e., E-1, E-2, H-1B, H-2A, H-2B, H-3, J-1, L-1, TN).

* Retain DHS receipt for timely filed extension, proof of payment, and evidence of petition mailing

* Write “240-Day Ext.” & record date Form I-129 submitted to USCIS next to Section 2. Reverify the employee’s employment authorization in Section 3 once you receive USCIS decision or by the end of 240-day period, whichever comes first.

* Use a new I-9 to reverify if

• Previously used Section 3

• Version of I-9 no longer valid

• Write employee’s name in Section 1

• Complete Section 3

• Retain previously completed I-9


*Section 3: Rehiring

*If rehire w/in 3 years of previous I-9 completed, complete new I-9 or Section 3 of previous I-9 if employee still work authorized


*Why Conduct an Internal Audit?

*DHS has increased employer audits

• 2009 to present: 4,000 employers audited; $7 Million in fines assessed

• In July of 2011: 3 New England companies fined $118K, $110K, and $22.8K for I-9 violations

* If Company complies in “good faith” with I-9 verification process, has affirmative defense; Law also permits “good faith” defense for technical/procedural errors

* Identifying/Correcting I-9 errors in advance of DOL/DHS inspection demonstrates “good faith” compliance, and may lead to reduced liability

*Should I-9 Form need to be corrected after completion, should not be “backdated”


*Internal Audit Overview

Each section completed in its entirety?

Employee and company rep each sign and date?

Were the proper documents accepted for appropriate version of form?

Have List A & List C items been reverified, if necessary?

Were the copies of the I-9 documents retained?


*Resources

*USCIS Resources: http://www.uscis.govForm I-9 & Instructions I-9 Handbook for EmployersI-9 Central: webpage that offers quick access to

information in I-9 handbook & customer support


http://www.uscis.gov/



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Stacey Leigh Spector, a Founding Partner of The Rudnick Spector Firm, is among the country’s leading immigration lawyers. She has been practicing immigration law for over 25 years, and is a founding partner of The Rudnick Spector Firm. Ms. Spector’s practice encompasses a full spectrum of business immigration including multinational corporations, technology companies, academic and research institutions, and entertainers and artists. Ms. Spector has particular expertise in advising employers on the immigration implications of corporate changes, including mergers and acquisitions, downsizing, and reductions in work force. She has successfully developed I-9 Compliance Training Programs for HR personnel, and has managed I-9 and H-1B audits for her clients.

Prior to establishing the Rudnick Spector Firm, Ms. Spector served for ten years as Of Counsel to the predecessor firm of Steel, Rudnick & Ruben. Ms. Spector also served as Immigration Counsel to the former Rhône-Poulenc Group based in Collegeville, Pennsylvania, from 1992 to 2000. Ms. Spector was based in Paris, France, from 1990 to 1992, where she established an immigration practice and published “The Immigration Chronicle.” From 1987 to 1990, Ms. Spector headed the immigration practice at Pavia & Harcourt in New York, New York. She served as an Associate at Patterson, Belknap Webb & Tyler, also in New York City, from 1982 to 1984. Education: New York University School of Law, 1982, J.D. Brown University, 1979, Magna Cum Laude, Phi Beta Kappa


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Ms. Soubel is an Associate at The Rudnick Spector Firm, having served in this capacity with its predecessor firm beginning in 2007. Ms. Soubel was selected as a 2010 Top Young Attorney “Rising Star” by Pennsylvania Super Lawyers.

Ms. Soubel counsels clients on U.S. and global immigration matters. She concentrates in all aspects of U.S. corporate immigration, including nonimmigrant visas and permanent residence for intracompany transferees, professionals, and extraordinary ability individuals. She also assists clients with global immigration needs by preparing outbound business-related visas. She advises on and crafts corporate strategies for clients to ensure U.S. immigration law compliance.

Prior to practicing exclusively in immigration law, Ms. Soubel gained several years of employment litigation experience representing employers and their insurance providers in Workers’ Compensation matters.

Throughout her career, Ms. Soubel has been actively involved with international affairs and the immigrant community. In 2003, she interned as a Law Clerk in Tokyo, Japan, at Sakura Kyodo Law Offices, where she advised on matters of U.S. immigration, corporate, and antitrust law, and gained experience in Japan’s immigration system. She served as a member of the Temple International and Comparative Law Journal, while pursuing her legal studies at Temple University. Prior to practicing law, Ms. Soubel also served as an EFL Instructor.

Education: James E. Beasley School of Law at Temple University, 2004, J.D. University of Michigan, Ann Arbor, 2000, BA with Honors.
