FastFacts Feature Presentation April 12, 2012 We are using audio during this session, so please dial...

FastFactsFeature Presentation

April 12, 2012

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© 2012 The Johns Hopkins University. All rights reserved.

Today’s Topic•We’ll be taking a look at…

I-9’s and E-Verification: Information You Need to Know

Today’s Presenter•Andrew B. GreenfieldPartner in the Law Firm Fragomen, Del Rey, Bernsen & Loewy, LLP

Session Segments

•Presentation- Andrew will discuss important information related to I-9

processing and E-Verification.

- During Andrew’s presentation, your phone will be muted.

•Q&A- After the presentation, we’ll hold a Q&A session.

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- Anne will answer as many of your questions as time allows.

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Form I-9 Compliance Training for Johns Hopkins University

April 2012

9

Your immigration legal team at Fragomen:

•Andrew Greenfield- agreenfield@fragomen.com, (202) 349-2183

•Dan Williamson- dwilliamson@fragomen.com, (202) 349-2178

10

Fragomen Immigration Support

•Visa/work permit sponsorships- H-1B, L-1, TN, O-1, others

• Global Mobility

• Local hires

•US Residency “green card” sponsorship•Compliance

- I-9

- E-Verify

- H-1B/LCA

•Email alerts

11

I-9 Compliance - History

•1986 Amnesty- I-9 requirement

• All employers must complete form properly- Check identity and employment authorization

- Knowing hires prohibited

- Concerns about discrimination• Antidiscrimination laws

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Why Compliance Matters

•It’s the law!•Civil penalties•Criminal penalties•Negative PR•E-Verify participation•3-part compliance strategy

- I-9 Training

- Ensure I-9’s for all employees

- Sample audit of I-9’s to ensure compliance

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Current Civil Penalties

•Violations of I-9 requirements (paperwork): - $110 - $1,100 per I-9

- Consideration given to history of compliance, size of business and good faith of the employer

•Knowingly hired or continuing to employ - $375 - $3,200 per unauthorized employee (1st offense)

- $3,200 - $6,500 (2nd offense)

- $4,300 - $16,000 (subsequent offenses)

•Debarment from government contracts for “knowingly employing an unauthorized worker”

14

Form I-9 Completion

•Form I-9 must be completed for all new hires including temporary or part-time employment

•Form I-9 must be completed for all employees working in the U.S., even if on payroll abroad

•Form I-9 not required for independent contractors•Form I-9 not required for pre-11/7/86 hires (“grandfathered” employees)

•Do not I-9 employees working outside the U.S. or outside its territories

•Be sure to use current version of I-9 form- “08/07/09” at bottom right-hand corner of form

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Form I-9 Completion

•Physical presence of employee required•Must provide employee with I-9, list of acceptable documents and instructions

•You must see original documents•Documents must be Unexpired when presented•Attach photocopies of documents (recommended)

- If using E-Verify, then must keep copies of documents reviewed for photo-matching tool

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Discrimination Violations

• Document Abuse- occurs when certain employees or applicants are subject to more

stringent verification measures than necessary to verify that they are eligible to work in the United States

• Citizenship Status Discrimination- occurs when individuals are not hired or are fired because of their

real or perceived immigration or citizenship status, or because of their type of work authorization

• National Origin Discrimination- employer treats an employee or applicant differently during the

hiring and firing process because of his or her place of birth, country of origin, ancestry, native language, accent or because the individual is perceived as looking or sounding foreign

• Retaliation- ex.: employee terminated for filing complaint

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“Protected Class” Includes:

•U.S. Citizens or Nationals

•Permanent Residents

•Refugees

•Asylees

•Temporary Residents under the legalization program (Special Agricultural Worker or amnesty applicant)

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Form I-9 Completion

•Section 1 must be completed by employee on, or before, the first day of work once the job offer has been accepted

•Section 2 must be completed within three business days from the date employment begins

•Section 3 reverification must be completed on, or before, temporary employment authorization expires

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Form I-9

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List of Acceptable Documents

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Tips for Section 1

•Section 1 must be completed by employees on or before first day of hire even if they don’t have their documents.

•Ensure that employee checks box, and signs and dates the form.

•If employee checks box 3 (A Lawful Permanent Resident), A # must be entered.

•If employee checks box 4 (An alien authorized to work), expiration date and A# or I-94 number must be entered.- Asylees/refugees will not have an expiration date

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Most Common Errors on Section 1

2

1

3

54

6 & 7

1. Name in wrong order

2. Address incomplete

3. Social Security # field blank (not required except for E-Verify employers)

4. Attestation not checked or incomplete, data on wrong line

5. Signature missing

6. Date missing

7. Date of birth instead of current date

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Tips for Section 2•Section 2 must be completed by company representative within 3 business days from date of hire- Same deadline for E-Verify query, if applicable

- May use agent for employees on-boarded remotely, but liability remains with employer

•Verification of IDENTITY and WORK AUTHORIZATION•New hire must be physically present•Company representative must review ORIGINAL DOCUMENTS

•UNEXPIRED documents only

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Receipt Rule

•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•Must see original of replacement document within 90 days of hire (docket this date)

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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)

• 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; and • 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

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Most Common Errors on Section 2

1

1. Columns A, B, or C left blank even with copies attached

2. Column B & C documents reversed

3. Document number missing

4. Document expiration date missing

5. Date of hire missing

6. Certification not signed

2

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5

6

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Reverification

•Required for almost all “Box 4” employees (An alien authorized to work) and certain “Box 3” employees (A Lawful Permanent Resident)

•Establish tickler system of expiration dates•Record expiration date shown in attestation section

- Should match expiration date recorded in Section 2• Ok to question employee if there is a discrepancy

•Send employee memo 120 days in advance•Only need to see List “A” or List “C” document•Record new expiration date in tickler system•90 day receipt rule applies

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Special Reverification Issues

• US passports and “green cards” (Form I-551: “Permanent Resident” or “Resident Alien”)- Must be unexpired when presented, BUT should NEVER be re-verified

• Lawful Permanent Residents with alternate documents- I-551 stamp with photo on I-94 card

- I-551 printed notation on a machine-readable immigrant visa

- Expired Form I-551 with DHS notice that status extended• By expiration date or one year if no expiration date

• Always reverify by expiration date in Section 1, box 4 (An Alien authorized to work)

• Should match expiration date recorded in Section 2- Ok to question employee if there is a discrepancy

• Asylees/refugees may write “n/a”

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Form I-9 – Section 3

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Most Common Errors on Section 3

•Reverification not completed in a timely manner•Document provided was not acceptable or inadequately described

•Over-documentation (do not reverify identity)•Employer signature or date missing•NOTE: if the version of the I-9 form used initially has since expired, then you must re-verify using a current I-9 form, including a current list of acceptable documents.

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Document Tips• I-9 documents must be unexpired when presented

- 2 exceptions• Expired Form I-766 with evidence of TPS (C-19) or OPT extension• Expired Form I-551 with DHS notice that status extended

• ID card must be issued by a federal/state/local government agency

•Voter’s registration card need not have photo to confirm identity (unless you are using E-Verify)

•Social Security card not acceptable for work authorization if it contains notation “Not Valid for Employment” or “Valid with INS [or DHS] Authorization only”

•Social Security card not acceptable if laminated and reverse side indicates that not valid if laminated

•Birth certificate must be issued by state or local government authority (not hospital issued)

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Special Rules for E-Verify

•Employee must provide Social Security Number on I-9 in Section 1

•If list B document presented, it must have a photo•Must keep copies of documents if using E-Verify and photo-matching tool applies- Currently US passport, Permanent Resident Card (Form I-551),

EAD (Form I-766)

- Fragomen recommends keeping copies of all documents reviewed

•New employees only, unless obligated to use E-Verify as a federal contractor, in which case existing employees performing services under the contact must also be run through E-Verify

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Retention Obligations

•Employer must have a Form I-9 for every current employee (unless they were hired prior to November 7, 1986).

•Following employee’s 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

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Correcting Forms I-9

•Make corrections on original Form I-9•Initial and date all corrections•Employees should make corrections to Section 1

- HR can make corrections to A#, Admission # and expiration date in attestation if copies attached

•Do not back date•Do not use correction fluid•Cross-outs (but not black-outs) are OK

35

Correcting I-9s for Terminated Employees

•A#s and Admission #s & expiration dates if copies attached

•Document information in Section 2 if copies attached•Date of hire•Company name and address•Reverification if copies attached

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Examples of Substantive Violations

•Violations will incur fines•Missing I-9•Late completion of I-9 (but better than no 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 signed or completed•Section 3 not completed or signed if applicable

37

Examples of 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, if copies of documents attached

•Not dated or if date of hire missing•Document information incomplete (if copies attached)•No title, business name or address•Employer signature not dated

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Samples of Corrected I-9s

39

40

41

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Sample I-9s and Documents

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Sample I-9 for U.S. Citizen

12

44

1

1. Passport Number

2. Expiration Date

2

US Passport

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Sample I-9 for aPermanent Resident

12

46

2

1

1. Document Number

2. Expiration Date

Permanent Resident Card

47

Sample I-9 for Foreign National in Non Immigrant Status H, L, O, E

12

48

Acceptable Document Unacceptable Document

1. Admission (Departure) Number

2. Expiration Date

1

2

I-94 Form

49

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 hasn’t worked without authorization

- Foreign national is maintaining valid status (i.e. still employed) on the day of the COE petition is received by CIS

- Non-frivolous petition is filed before I-94 card expires

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Sample I-9 forH-1 Portability

Current version of Handbook for Employers requires only annotation on the form that employee is portable under AC-21 and that new petition was filed. Best practice is to have some documentation that new I-129 has been received by USCIS.

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Sample I-9 forF-1 Curricular Practical Training1. I-94 Departure Number

2. Expiration date of CPT from I-20 form

12

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I-94 Evidencing Admission of F-1 Student in Duration of Status

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Form I-20

1. Document number

1

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2. Expiration date

2

Form I-20

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Sample I-9 forF-1 Optional Practical Training

12

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1. Alien Number

2. Document Number

3. Expiration Date

12

3

Employment Authorization Card (EAD)

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Sample I-9 forJ-1 Nonimmigrant Status1. I-94 Admission (Departure) Number

2. Expiration date on DS-2019 form

12

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2. Expiration date as I-94 will show D/S (duration of stay)

2

1

Form DS-2019

1. Document number

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Reverification

1 2

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1. Document Number

2. Expiration date

1

2

I-94 Extension

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Receipt for Lost, Stolen, or Damaged Document

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For More Information

• US Citizenship and Immigration Serviceshttp://www.uscis.gov/portal/site/uscis

• Department of Homeland Securityhttp://www.dhs.gov

• U.S. Embassy and Consulate Information (DOS)http://www.travel.state.gov

• Department of Labor

http://www.dol.gov• Social Security Administration (SSA)

http://www.ssa.gov• E-Verify

http://www.uscis.gov/e-verify• I-9 Employer Handbook

http://www.uscis.gov/files/form/m-274.pdf

• We’re going to open the phone lines now!• There will be a slight pause, and then a recorded voice will

provide instructions on how to ask questions over this conference call line.

• We’ll be answering questions in the order that we receive them.• We’ll also be answering the questions that were emailed to us

during the presentation.• If there’s a question that we can’t answer, we’ll do some research

after this session, and then email the answer to all participants.

Q&A

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