New I-9 Form: How to Best Deal with Its Challenges

Avalyn C. Langemeier 713.625.9232

alangemeier@fosterquan.com

• Required for ALL employees hired after November 6, 1986.

• Requires the employer to verify the employee’s identity and employment eligibility.

Form I-9: Verification of Employment Eligibility

• Must use beginning May 7, 2013.

• 2 pages.

• Instructions are more detailed and include links to OSC, I-9 Central, and E-Verify.

• Barcode added.

New Form I-9 (03/08/13)

• To be completed by the employee only (or preparer/translator).

• Employee must complete on or before 1st day of work.

• Employer must make sure Section 1 is timely/properly completed by the employee.

Form I-9: Section 1

Form I-9: Section 1 New Fields

1) New field for other names used. 2) New optional fields for e-mail

address and telephone number. 3) If employee is an “alien

authorized to work” and obtained Admission Number from CBP in connection with arrival in U.S., must include more information, such as foreign passport number and its country of issuance. (See next slide.)

4) Better defined signature box for employee.

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Section 1: Challenges • New Guidance: Section 1 shall not be prepopulated by

employer. • Per Form I-9, new I-9 instructions must be made available to

employee when completing Form I-9. • Allow more time for completion of Form I-9. • Revise your on-boarding procedures?

On-Boarding Procedures • Employer cannot specify which documents it will accept from

the List of Acceptable Documents for Form I-9. • If employee is an alien authorized to work, however, the

employee will need to have information ready to complete Section 1 by first day of work. If new employee is an alien authorized to work (not U.S. citizen,

national, or permanent resident of the U.S.), then new employee must know his “Alien Registration Number (A#)/USCIS Number”. If does not have an A#, then employee must know his/her I-94 number.

If obtained I-94 from CPB when entered U.S., employee must know the foreign passport number used to enter the U.S. and the country of issuance. (If I-94 not obtained from CBP, would write “N/A”.)

Let new employee know how to obtain I-94 if I-94 information needed to complete Section 1: Go to www.cbp.gov/i94.

1) New header instructs that employer or authorized representative must physically examine and complete Section 2 within 3 business days of the employee’s 1st day of employment.

2) Includes new field for employer to insert employee’s name.

3) Expands List A so that it is easier to include required information for students and exchange visitors.

4) More prominent field to insert 1st day of employment.

5) Includes separate fields for employer’s business/organization name and address.

Form I-9: Section 2

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1) New field added for employer or authorized representative to print his or her name.

Form I-9: Section 3

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• Failure of employer to complete prior to expiration of employee’s work authorization.

• Sections 1 & 2 completed.

• Employer attempts to re-verify expiring U.S. Passport, Passport Card, Permanent Resident Card (green card) or List B document – NOT required or permitted!

Form I-9: Section 3 Common Pitfalls

Revised List of Acceptable Documents

• Clarifies that employees may present 1 document from List A or a combination of documents from both List B and List C.

• List C describes which Social Security cards are not acceptable.

• Refers to Section 2 instructions for more information on acceptable receipts.

Receipts

• General Rule: Receipts are not generally acceptable for I-9 purposes. Receipt demonstrating employee has applied to extend

Employment Authorization Document is not a valid I-9 document.

• Main Exception: Employer can accept a receipt for replacement of a lost, stolen, or damaged document. Employer must calendar and review original document

within 90 days, and update I-9 accordingly.

Example: Unacceptable Receipt

Example: Acceptable Receipt

Acceptable List B Document: Not a Receipt

• I-94 needed for some to complete Form I-9 and to obtain Social Security Cards, Drivers Licenses, etc.

• Beginning April 30, 2013, CBP will phase in electronic I-94 cards for foreign nationals arriving by air and sea.

• Houston airports started using electronic I-94 on May 7, 2013.

• Paper I-94 cards will be issued by CBP only for entry by land and for refugees, asylees, and when CBP determines appropriate.

• Visit website at www.cbp.gov/i94 to print I-94.

New I-94 Arrival/Departure Card

New I-94 Card

1) Departure (Admission) Number

2) Date Admitted

3) Visa Status

4) Length of Stay

5) Name

6) Date of Birth

7) Citizenship

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• New Handbook for Employer describes changes to Form I-9. See M-274 (Rev. 3/8/13)N, pages 6, 17, 18 and 24.

• More detailed Instructions clarify changes to new Form I-9.

Revised Handbook for Employers and Form I-9 Instructions

Form I-9 Retention Rule 1:

• Forms I-9 must be retained for all active employees.

Rule 2:

• After termination, employer must retain Forms I-9 for:

• 3 years after hire date

OR

• 1 year after termination

WHICHEVER IS LATER.

Existing liability on a Form I-9 is retained following termination of the employee for so long as the Form I-9 is required to be retained.

• Free web-based service in partnership between U.S. Department of Homeland Security and the Social Security Administration.

• Electronically verifies the employment eligibility of

Newly hired employees; and

Existing employees assigned to work on a qualifying federal contract.

• Self Check is now available nationwide for users to check their own employment eligibility status.

Participation in E-Verify: Advantages & Risks

ADVANTAGES: • Demonstrates good faith. • Could assist employers in reducing number of unauthorized workers. • No charge to participating employers. • F-1 OPT employees eligible for OPT STEM extension.

RISKS: • Data in Government databases may not be 100% accurate. • Data Mining:

Government agencies now share information; Cases of suspected misuse, abuse, and fraud are reported to ICE.

• Does not eliminate identity fraud.

NOTE: Bipartisan proposal: all employers to use E-Verify in 5 years.

Latest Updates: The SAVE Program • The Systematic Alien Verification for Entitlements (SAVE) Program is

a web-based service that helps federal, state and local benefit-issuing agencies, institutions and licensing agencies determine the immigration status of applicants.

• Promotes automated status review, taking immigration status verification out of the hands of local agency representatives.

• Includes tiered process for status verification when immediate confirmations are unavailable.

• Result: Expect delays in applying for and renewing benefits, including driver’s licenses in most states.

Civil Penalties Civil Penalties Assessed for the Following: Paperwork Violations (e.g., no Form I-9, mistakes on Form I-9).

• Approximately $110-$1,100 per employee. Knowingly hiring or continuing to employ unauthorized

workers. • 1st offense: Approximately $375-$3,200 per

unauthorized worker. • 2nd offense: Approximately $3,200-$6,500 per

unauthorized worker. • 3rd offense: Approximately $4,300-$16,000 per

unauthorized worker.

Criminal Charges and Penalties • Criminal Charges: Pattern or practice of knowingly hiring or continuing to

employ unauthorized aliens; harboring illegal aliens, transporting illegal aliens, money laundering, etc.

• Criminal Penalties: Imprisonment for up to 6 months for entire “pattern and

practice” of unauthorized employment.

U.S. Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices • OSC investigates & prosecutes allegations of discrimination. • Federal law prohibits discrimination based on

Citizenship/Immigration status. National origin discrimination. Document abuse during Form I-9 employment

eligibility verification. Retaliation or intimidation.

• Tips: Do not request more or different documents than required, reject reasonably genuine-looking documents, or request certain documents. Do not use E-Verify or Self-Check to pre-screen employees.

• Penalties for unlawful discrimination: back pay, reinstatement and/or civil penalty of $375 - $16,000 per violation.

Be Proactive in Compliance Efforts • Identify what immigration issues may affect

your organization, such as those related to: Hiring Visas Social Security No Match letters Form I-9: completion, re-verification,

storage and retention E-Verify Independent Contractors

• Conduct regular trainings for managers, HR professionals, staff and employees.

• Have a compliance policy, and review, follow, and enforce it.

Build and Maintain a Culture of Compliance Within Your Organization

• Conduct an Audit, before an investigation • Public Access Files (be ready for DOL audits and USCIS visits),

• Forms I-9, and

• Verification policies. ** More weight is given to mitigation and compliance efforts made before being on ICE, HSI, USCIS or DOL’s radar.

• Stay abreast of the latest in enforcement actions.

• Create and train a first response team. Instruct everyone else in company to defer questions to first responders.

• Centrally store appropriate files for quick access, and audit periodically for accuracy. Consider using compliant, vetted and secure Form I-9 software.

Questions

Avalyn C. Langemeier 713.625.9232

alangemeier@fosterquan.com