Presented By: David W. Sturges Gislason & Hunter LLP 2700 ... · with evidence of employment...

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Presented By: David W. Sturges Gislason & Hunter LLP 2700 South Broadway New Ulm, MN 56073

(507) 354-3111

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TABLE OF CONTENTS Page

I. OVERVIEW. ......................................................................................................................1

II. FORM I-9 (SECTION 1, SECTION 2 AND SECTION 3). ...........................................2

A. General Information. ..................................................................................................... 2

B. Categories of Employment Authorization. .................................................................. 3

III. ONLY EMPLOYEES COMPLETE FORM I-9 – WHO IS AN EMPLOYEE? .........4

IV. DOCUMENTS FOR REVIEW SUPPORTING IDENTITY AND

AUTHORIZATION OF EMPLOYEE. ...........................................................................5

V. REVIEW OF DOCUMENTS BY EMPLOYER (SECTION 2). ...................................8

VI. CONTINUING EMPLOYMENT – REVERIFICATION NOT REQUIRED. ..........10

VII. RETENTION OF FORMS I-9 PHOTOCOPYING OF DOCUMENTS. ...................12

VIII. INSPECTION BY DEPARTMENT OF HOMELAND SECURITY. ........................13

IX. UNLAWFUL DISCRIMINATION. ...............................................................................14

X. E-VERIFY. .......................................................................................................................16

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I. OVERVIEW.

The Immigration Reform and Control Act of 1986 (the “IRCA”) was the first law which

included provisions prohibiting the employment of unauthorized alien workers. The IRCA

provides for civil and criminal penalties against an employer for knowingly hiring, recruiting or

referring for a fee, or continuing to employ unauthorized alien workers. The Immigration Act of

1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) of 1996

modified the IRCA. Both the Immigration Act of 1990 and the IIRIRA came in response to what

was perceived as wide spread employer discrimination in the employment process coupled with

the wide availability of fraudulent documents.

In 1991 a new Handbook for Employers was published with new instructions to

employers on how to comply with the law. At the time the IIRIRA revised the list of acceptable

documents to be used in the employment verification process. In June 2011, the United States

Customs and Immigration Services (“USCIS”) published its Handbook for Employers, a sixty-

five page book of instructions for completing the Form I-9.

The simple premise of IRCA is that employers may only hire individuals who may

legally work in the United States. This includes United States citizens, noncitizen nationals,

lawful permanent residents, and aliens authorized to work in the United States.

The means by which an employer establishes whether an individual may legally work in

the United States is the so-called Form I-9, Employment Eligibility Verification. The Form I-9 is

a means whereby the employer establishes both the IDENTITY AND EMPLOYMENT

AUTHORIZATION for each individual that the employer is hiring.


Completing the Form I-9 is a three part process:

Section 1 (Employee).

First, in Section 1 of the Form I-9, the employee must provide his/her employer

with evidence of employment authorization and identity by means of accepted,

established documentary evidence.

Section 2 (Employer).

Once the employee has provided the required information as required by Section

1, the employer must review the documents and record the documents provided/reviewed

at Section 2 of the Form I-9.

Section 3 (Employer).

Section 3 requires the employer to update and reverify information with respect to

the employee upon the occurrence of certain events.

II. FORM I-9 (SECTION 1, SECTION 2 AND SECTION 3).

A. General Information.

The Employee is required to complete Section 1 of the Form I-9 and provide the

following information:

Name

Address

Date of birth

Social Security Number. Providing the Social Security Number is voluntary

except if the employer is participating in a USCIS E-Verified Program which

requires an employee’s Social Security Number for employment eligibility

verification.

Attestation to the effect that the employee is: (1) a citizen of the United States, (2)

or, a noncitizen national of the United States, or (3) a lawful permanent resident,

or (4) an alien authorized to work in the United States.


If the individual employee requires help in completing Section 1, such as in those cases

where the individual is unable to read or write or if there is a language barrier, Section 1 may be

completed by someone else. The individual preparing or translating the certification on behalf of

the employee, though, must provide his/her name and address as well.

The preparer or translator, in assisting the employee must read the form to the employee.

The employee must still sign or mark the form.

With respect to minors, if the minor cannot present an identity document from List B

(e.g. drivers license, ID card issued by federal, state, or local agencies, school ID with

photograph, voters registration card); the parent or legal guardian of the minor employee may

establish the identity of the minor by completing Section 1. The parent or guardian should insert

the following language where “Employee’s Signature” is to appear: “INDIVIDUAL UNDER

AGE 18.” In this instance, the parent or legal guardian of the minor employee must also

complete the Preparer and/or Translator Certification block. With respect to Section 2, as it

applies to a minor, the employer enters “INDIVIDUAL UNDER AGE 18” under List B and

records the List C documents that the minor presents.

With respect to employees with disabilities, a representative of a nonprofit organization,

parent, or legal guardian of an individual with a disability may complete Section 1 and write

“SPECIAL PLACEMENT” in the signature space. The representative, parent, or legal guardian

should then complete the Preparer and/or Translator Certification block. The employer enters

“SPECIAL PLACEMENT” under List B and records the List C documents that the employee

with a disability presents.

B. Categories of Employment Authorization.

There are three categories of employment authorization for aliens:


Aliens Authorized for Employment Incident to Their Status.

Certain foreign nationals are authorized to be employed in the United States

without restriction as to the location or type of employment. This category includes U.S.

lawful permanent residents, temporary or conditional lawful residents, asylees, refugees,

aliens granted temporary protected status and fiancés of United States citizens. NOTE:

these individuals may require an employment authorization document (“EAD”) to

evidence employment authorization.

Aliens Authorized for Employment with a Specific Employer.

Some aliens have been retained to work for and are authorized to work for a

specific employer in the United States. Pursuant to their work documents, they are not

permitted to work for a different employer without additional employment authorization.

Aliens in this category may include diplomats, certain students, temporary workers, treaty

traders and investors, exchange visitors, intra company transferees and certain

professionals. Their Form I-94 entry Visa - entry Form – will identify the Visa category

under which they have been admitted together with an expiration date.

Aliens who are Required to Apply for Employment Authorization.

Some aliens are required to specifically apply to the USCIS for an EAD. This

may include spouses of an unmarried dependent and/or minor children of diplomats,

officials with international organizations, and exchange visitors, spouses of treaty

investors, treaty traders and intra company transferees, as well as students.

III. ONLY EMPLOYEES COMPLETE FORM I-9 – WHO IS AN EMPLOYEE?

Only employees are required to complete the Form I-9. The following groups of

individuals are not required to complete a Form I-9:


Employees hired on or before November 6, 1986.

Employees who were hired and are continuing their employment and have a

reasonable expectation at all times of continued employment are not required to complete

a Form I-9.

Casual Domestic Work.

Those individuals employed for casual domestic work in a private home on a

sporadic, irregular or intermittent basis are not required to complete a Form I-9.

Independent Contractors.

Independent Contractors are not required to complete a Form I-9.

Contract Services.

Persons who provide labor to an employer, but who are employed by a contractor

providing contract services to the primary employer, such as employee leasing or

temporary agencies are not required to complete a Form I-9.

IV. DOCUMENTS FOR REVIEW SUPPORTING IDENTITY AND

AUTHORIZATION OF EMPLOYEE.

The employee is required to provide the employer with an original document or

documents which evidence the employee’s identity and employment authorization. The

document or documents are to be provided within three days of the date employment begins.1

There are three types of documents that are acceptable for the purposes of the Form I-9:

(1) List A Documents which show both identity and employment authorization; (2) List B

Documents which evidence the identity of the employee only; or, (3) List C Documents which

evidence employment authorization only.

1 NOTE: the employer must ensure that the employee completes Section 1 of Form I-9 by the employee’s first day

of work for pay. The employee may complete Section 1 of Form I-9 at any time between the acceptance of the job

offer and the first day of work for pay.


NOTE, the employee must be permitted to choose those documents that the employee

wishes to present from the List of Acceptable Documents found on the last page of Form I-9. If

an employer requires additional or other documents not identified on the Form I-9, this may

subject the employer to claims of discrimination. The documents which may be presented are as

follows:

List A: Documents that Establish Both Identity and Employment

Authorization.

1. U. S. Passport or Passport Card

2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)

3. Foreign passport that contains a temporary I-551 stamp or temporary I-551

printed notation on a machine-readable immigrant visa (MRIV)

4. Employment Authorization Document (Card) that contains a photograph

(Form I-766)

5. In the case of a nonimmigrant alien authorized to work for a specific

employer incident to status, a foreign passport with Form I-94 or Form I-

94A bearing the same name as the passport and containing an

endorsement of the alien’s nonimmigrant status, as long as the period of

endorsement has not yet expired and the proposed employment is not in

conflict with any restrictions or limitations identified on the form

6. Passport from the Federated States of Micronesia (FSM) or the Republic

of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating

nonimmigrant admission under the Compact of Free Association Between

the United States and the FSM or RMI

7. In the Commonwealth of the Northern Mariana Island (CNMI) only, a

foreign passport along with special documents issued by the CNMI.

List B: Documents that Establish Identity.

For individuals 18 years of age or older:

1. Driver’s license or ID card issued by a state or outlying possession of the

United States, provided it contains a photograph or information such as

name, date of birth, gender, height, eye color, and address


2. ID card issued by federal, state, or local government agencies or entities,

provided it contains a photograph or information such as name, date of

birth, gender, height, eye color, and address

3. School ID card with a photograph

4. Voter’s registration card

5. U.S. military card or draft record

6. Military dependent’s ID card

7. U.S. Coast Guard Merchant Mariner Card

8. Native American tribal document

9. Driver’s license issued by a Canadian government authority

For persons under age 18 who are unable to present a document listed above:

10. School record or report card

11. Clinic, doctor, or hospital record

12. Day-care or nursery school record

List C: Documents that Establish Employment Authorization.

1. U.S. Social Security account number card other than one that specifies on

the face that the issuance of the card does not authorize employment in the

United States.

NOTE: A Copy (such as a metal or plastic reproduction) is not acceptable.

2. Certification of Birth Abroad issued by the U.S. Department of State

(Form FS-545)

3. Certification of Report of Birth issued by the U.S. Department of State

(Form DS-1350)

4. Original or certified copy of a birth certificate issued by a state, county,

municipal authority, or outlying possession of the United States bearing an

official seal

5. Native American tribal document


6. U.S. Citizen Identification Card (Form I-197)

7. Identification Card for Use of Resident Citizen in the United States (Form

I-179)

8. Employment authorization document issued by DHS

It is important to remember that any document presented by the employee must

be unexpired.

V. REVIEW OF DOCUMENTS BY EMPLOYER (SECTION 2).

The Employer is required to complete Section 2 of the Form I-9. Section 2 of the Form

I-9 requires that the Employer examine one document from List A Documents OR examine one

document from List B (identity) AND one from List C (employment authorization). The

Employer is then required to sign Section 2 attesting that the “document(s) appear to be genuine

and to relate to the employee named” and further attesting as to the date the employee began

employment and further “that to the best of my knowledge the employee is authorized to work in

the United States.”

The documents must be provided by the employee to the employer within three days after

hire. In the event an employee is hired for less than three days, the employer should collect the

information on the first day of the employee’s hire.

There are certain circumstances when a receipt in lieu of a List A, List B, or a List C

Document may be accepted by the employer. Acceptable receipts that an employee can present

are as follows:

Receipt for a replacement of a lost, stolen or damaged document.

The receipt is valid for 90 days from the date of hire or for reverification the date

employment authorization expires. Within this 90 days, the employee must then present

the actual document for which the receipt was issued.


The Arrival Portion of the Form I-94 or I-94A Containing a Temporary I-

551 Stamp and Photograph.

This receipt is proof of employment authorization and identity (List A). It is valid

until the expiration date of the Temporary I-551 stamp or, if no expiration date, one year

from date of issue. Prior to the expiration date, the employee is required to provide the

actual Form I-551 which is a Permanent Resident Card, sometimes referred to as a

“Green Card.”

Departure Portion of Form I-94 or I-94A with an Unexpired Refugee

Admission Stamp.

This is evidence of employment authorization and identity (List A). It is good for

90 days from date of hire or for reverification, the date employment authorization

expires. Prior to the expiration of 90 days, the employee is required to provide an

unexpired employment authorization document (Form I-766) or a combination of a valid

List B Document and an unrestricted Social Security card.

Note that some documents presented for review have expiration dates, such as the Form

I-551 (Alien Registration Card).

Future expiration dates on employment authorization documents do not preclude

continuous employment authorization nor do they mean that subsequent

employment authorization will not be granted.

Future expiration dates on employment authorization documents including,

among others, lawful permanent residents, asylees and refugees should not be

considered in determining whether an individual is qualified for a particular

position.

Considering a future employment authorization expiration date to determine

whether an alien is qualified for a particular job may constitute employment

discrimination.

The foregoing notwithstanding, when an employee’s employment authorization

document expires, the employer must reverify the employee’s employment

authorization no later than the date employment authorization expires. Section 3


of Form I-9 is to be used for reverification (or a new Form I-9 if Section 3 has

already been used). With the reverification, the employee is required to present a

document that shows current employment authorization. This would include a

document from List A Documents or List C Documents, including an unrestricted

Social Security card. If the employee is unable to provide proof of current

employment authorization, the employer cannot continue to employ that

individual.

NOTE: the foregoing does not apply with respect to certain nonimmigrant status such as

H-1B which is an employer-specific Visa / immigrant status. An individual holding an H-1B

Visa may not work for another employer until the new employer petitions USCIS for the foreign

national’s employment.

VI. CONTINUING EMPLOYMENT – REVERIFICATION NOT REQUIRED.

Name Change.

An employer is not required to update the Form I-9 when an employee changes

his or her name. The better practice, though, is that the information be updated and noted

in Section 3 of Form I-9.

Rehired Employees.

If an employee is rehired within three years of the date that the previous Form I-9

was completed, the employer has a choice of completing a new Form I-9 or relying on

the previously completed Form I-9.

If the employee’s previously completed Form I-9 reflects that the individual is

still eligible to work, the employer is not required to complete a new Form I-9 and

may rely upon the previous Form I-9 on record.

If an employee’s employment authorization has expired, the employer must

reverify employment authorization in Section 3 of the old I-9 or use a new Form

I-9.


Continuing Employment.

A new Form I-9 is not required in the case of continuing employment. The

following constitutes continuing employment:

Approved paid or unpaid leave on account of study, illness or disability of a

family member, illness or pregnancy, maternity or paternity leave, vacation, union

business, or other temporary leave approved by the employer.

Promotions, demotions or pay raises.

Temporary layoff for lack of work.

Strikes or labor disputes.

Reinstatement after disciplinary suspension for wrongful termination found

unjustified by any court, arbitrator or administrative body, or otherwise resolved

through reinstatement or settlement.

Transfer from one distinct unit of an employer to another distinct unit of the same

employer; (the employer may transfer the employee’s Form I-9 to the receiving

unit).

Seasonal employment.

Continuing employment with a related, successor, or reorganized employer,

provided that the employer obtains and maintains, from the previous employer,

records and Forms I-9 where applicable. A related, successor, or reorganized

employer includes:

The same employer at another location;

An employer who continues to employ some or all of a previous

employer’s workforce in cases involving a corporate reorganization,

merger, or sale of stock or assets;

An employer who continues to employ any employee of another

employer’s workforce, where both employers belong to the same multi-

employer association and the employee continues to work in the same

bargaining unit under the same collective bargaining agreement. For these

purposes, any agent designated to complete and maintain Forms I-9 must

record the employee’s date of hire and/or termination each time the

employee is hired and/or terminated by an employer of the multi-employer

association.


NOTE: The related, successor, or reorganized employer may choose to

treat these employees as new hires and complete new Forms I-9 for each

of them.

In determining whether an employee had a “reasonable expectation of

employment at all times”, the employer should consider the following factors:

The individual was employed on a regular and substantial basis. A determination

of a regular and substantial basis is established by a comparison of other workers

similarly employed by the employer.

The individual complied with the employer’s established and published policy

regarding his or her absence.

The employee’s past history of recalling absent employees for employment

indicates a likelihood that the individual in question will resume employment with

the employer within a reasonable time in the future.

The former position held by the individual has not been taken permanently by

another worker.

The individual has not sought or obtained benefits during his or her absence from

employment with the employer that are inconsistent with an expectation of

resuming employment within a reasonable time in the future.

The financial condition of the employer indicates the ability of the employer to

permit the individual in question to resume employment within a reasonable time

in the future.

The oral and/or written communication between employer, the employer’s

supervisory employees and the individual indicates that it is reasonably likely that

the individual will resume employment within a reasonable time in the future.

VII. RETENTION OF FORMS I-9 PHOTOCOPYING OF DOCUMENTS.

Forms I-9 must be retained for as long as the individual works for the employer. Once

the individual’s employment has terminated, the employer must then retain the Form I-9 for the

longer of three years after the date of the employee’s hire, or one year after the date employment

is terminated.


Forms I-9 may be retained on paper or microform, or electronically

Only the pages of the Form I-9 on which the employer enters employer/employee

entered data must be retained.

Microfilm or microfiche may be used to copy original signed Forms I-9

Forms I-9 may be retained electronically using commercially available computer

program

Whether Forms I-9 are retained electronically, by microfilm/microfiche or paper,

the Forms I-9 must be made available for inspection within three days of a request

by the Department of Homeland Security or the Department of Labor.

An employer may copy or scan documents an employee provides when

completing the Form I-9. The employer may keep the copies but the employer is not

required to retain copies of the scanned/copied documents for its files. In the event the

employer retains copies of the documentation, the employer must do so with respect to all

employees. The documentation should be kept with the copies of the Forms I-9.

VIII. INSPECTION BY DEPARTMENT OF HOMELAND SECURITY.

The following applies with respect to inspection of Forms I-9:

The employer must be given a minimum of three days’ notice prior to inspecting

Forms I-9.

The employer must make the Forms I-9 available at the location where the

Department of Homeland Security, Department of Labor or Office of Special

Counsel requests to see them.

For Forms I-9 stored at an offsite location, advise the inspecting officer of the

location and make arrangements for the inspection.

Refusing or delaying an inspection may be deemed a violation of the Department

of Homeland Security document retention requirements.


IX. UNLAWFUL DISCRIMINATION.

The following are types of prohibited employment discrimination, which may arise with

respect to the employment authorization and the identity of employees arising out of the Form I-

9 process (document abuse).

1. Improperly requesting that employees produce more documents than are required

by Form I-9 to establish the employee’s identity and employment authorization;

2. Improperly requesting that employees present a particular document, such as a

“green card,” to establish identity and /or employment authorization;

3. Improperly rejecting documents that reasonably appear to be genuine and to relate

to the employee presenting them; and

4. Improperly treating groups of applicants differently when completing Form I-9,

such as requiring certain groups of employees who look or sound “foreign” to

present particular documents the employer does not require other employees to

present.

Document abuse arising out of the Form I-9 process aside, an employer may not

discriminate against an employee based upon citizenship status, national origin discrimination or

in retaliation of an employee because the individual has filed an immigration-related

employment discrimination charge or complaint.

All employees should be treated equally when recruiting and hiring and when verifying

employment authorization and identity during the Form I-9 process. An employer may not:

1. Set different employment eligibility verification standards or require that different

documents be presented by employees because of their national origin and

citizenship status. For example, you cannot demand that non-U.S. citizens

present DHS-issued documents. Each employee must be allowed to choose the

documents that he or she will present from the lists of acceptable Form I-9

documents. For example, both citizens and employment-authorized aliens may

present a driver’s license (List B) and an unrestricted Social Security card (List C)

to establish identity and employment authorization. However, documents that are

clearly inconsistent may be rejected.


2. Request to see employment eligibility verification documents before hire and

completion of Form I-9 because someone looks or sounds “foreign,” or because

someone states that he or she is not a U.S. citizen.

3. Refuse to accept a document, or refuse to hire an individual, because a document

has a future expiration date.

4. Request that, during reverification, an employee present a new unexpired

Employment Authorization Document (Form 1-766) if he or she presented one

during initial verification. For reverification, each employee must be free to

choose to present any document either from List A or from List C.

5. Limit jobs to U.S. citizens unless U.S. citizenship is required for the specific

position by law; regulation; executive order; or federal, state, or local government

contract. On an individual basis, you may legally prefer a U.S. citizen or

noncitizen national over an equally qualified alien to fill a specific position, but

you may not adopt a blanket policy of always preferring citizens over noncitizens.

There are a variety of civil penalties which may be imposed upon an employer for hiring

or continue to employ unauthorized aliens. The civil money penalty is as follows:

1. First Offense: Not less than $375 and not more than $3,200 for each unauthorized

alien.

2. Second Offense: Not less than $3,200 and not more than $6,500 for each

unauthorized alien.

3. Subsequent Offenses: Not less than $4,300 and not more than $16,000 for each

unauthorized alien.

Failure to comply with Form I-9 requirements may also result in penalties or fines in an

amount of not less than $110 and not more than $1,100 for each violation. The following are

considerations to be taken into account in determining the amount of the civil penalty:

The size of the employer’s business

The good faith of the employer

The seriousness of the violation

Whether or not the individual was an unauthorized alien

The history of previous violations of the employer.


NOTE: an employer may not require a bond or indemnity from an employee against

liability.

If there is evidence of a pattern or practice of knowingly hiring unauthorized aliens, an

employer may face criminal penalties as well.

X. E-VERIFY.

E-verify is an automated link to the Social Security Administration and Department of

Homeland Security databases to assist employers in confirming the employment authorization of

new hires.

E-Verify is free.

E-Verify is available in all states.

Employers who participate in E-Verify must still complete a Form I-9 for each

newly hired employee.

E-Verify employers may accept any document or combination of documents on

Form I-9 but if the employee chooses to present a List B and C document

combination, the List B document must have a photograph.

To enroll, the employer must execute a Memorandum of Understanding.

Pursuant to the Memorandum of Understanding, the employer agrees to abide by

current legal hiring procedures and to insure that no employee will be unfairly

discriminated against in the use of the E-Verify Program.

E-Verify is voluntary except for federal contractors and subcontractors.

E-Verify is not to be used until after new hires have completed a Form I-9. It

cannot be used as a pre-screening tool for job applicants.

In using the E-Verify Program, an employer must use it for all new employees.

The E-Verify Program may not be used to confirm the eligibility of current

employees.

Within three days after hiring an employee, the employer enters information from the

employee’s Form I-9 into the E-Verify system.


Information concerning the employee’s Social Security number will be returned

first.

If the Social Security information matches, the USCIS database is then reviewed.

After inputting the information, the employer will receive one of three types of responses:

Employment authorized.

Social Security information could not be verified – “SSA tentative

nonconfirmation.”

Non-citizen’s information matches the Social Security database but not the

Department of Homeland Security’s electronic records: “DHS verification in

process.”

Upon receipt of a nonconfirmation, the employer is required to notify the employee as

soon as possible and inform the employee of the right to contest the result.

NOTE: the employer may not take adverse employment action against employment

during the time the employee opts to contest the finding. If an employee does not contest the

result, the employer may terminate employment.

NOTE: The employee must contest the determination within eight days of being

notified by the employer.

Presented By: David W. Sturges Gislason & Hunter LLP 2700 ... · with evidence of employment...

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Transcript of Presented By: David W. Sturges Gislason & Hunter LLP 2700 ... · with evidence of employment...