Transcript Introducing the strategic and cohesive Fragomen brand

FastFacts
Feature 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. Greenfield
Partner 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.
- We’ll open up the phone lines, and you’ll be able to ask
questions.
- Anne will answer as many of your questions as time allows.
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April 2012
Form I-9 Compliance Training for Johns
Hopkins University
Your immigration legal team at Fragomen:
• Andrew
Greenfield
- [email protected], (202) 349-2183
• Dan
Williamson
- [email protected], (202) 349-2178
8
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
9
alerts
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
10
Why Compliance Matters
• It’s
the law!
• Civil
penalties
• Criminal
penalties
• Negative
• E-Verify
• 3-part
PR
participation
compliance strategy
- I-9 Training
- Ensure I-9’s for all employees
- Sample audit of I-9’s to ensure compliance
11
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”
12
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
13
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
• Attach
must be Unexpired when presented
photocopies of documents (recommended)
- If using E-Verify, then must keep copies of documents reviewed
for photo-matching tool
14
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
15
“Protected Class” Includes:
• U.S.
Citizens or Nationals
• Permanent
Residents
• Refugees
• Asylees
• Temporary
Residents under the legalization
program (Special Agricultural Worker or amnesty
applicant)
16
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
17
Form I-9
18
List of Acceptable
Documents
19
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
20
Most Common Errors on Section 1
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
1
3
2
5
21
4
6&7
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
22
documents only
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)
23
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
24
Most Common Errors on Section 2
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
1
3
4
5
6
25
2
Reverification
• Required
for almost all “Box 4” employees (An alien
authorized to work) and certain “Box 3” employees (A
Lawful Permanent Resident)
• Establish
• Record
tickler system of expiration dates
expiration date shown in attestation section
- Should match expiration date recorded in Section 2
• Ok to question employee if there is a discrepancy
• Send
• Only
employee memo 120 days in advance
need to see List “A” or List “C” document
• Record
• 90
26
new expiration date in tickler system
day receipt rule applies
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”
27
Form I-9 – Section 3
28
Most Common Errors on Section 3
• Reverification
• Document
described
not completed in a timely manner
provided was not acceptable or inadequately
• Over-documentation
• Employer
• NOTE:
(do not reverify identity)
signature or date missing
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.
29
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)
30
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
31
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
32
Correcting Forms I-9
• Make
• Initial
corrections on original Form I-9
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
33
(but not black-outs) are OK
Correcting I-9s for Terminated Employees
• A#s
and Admission #s & expiration dates if copies
attached
• Document
• Date
information in Section 2 if copies attached
of hire
• Company
name and address
• Reverification
34
if copies attached
Examples of Substantive Violations
• Violations
• Missing
• Late
will incur fines
I-9
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
35
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
• No
title, business name or address
• Employer
36
information incomplete (if copies attached)
signature not dated
Samples of Corrected I-9s
37
38
39
40
Sample I-9s and Documents
41
Sample I-9 for
U.S. Citizen
1
2
42
US Passport
1.
Passport Number
2.
Expiration Date
1
2
43
Sample I-9 for a
Permanent Resident
1
2
44
Permanent Resident Card
1.
Document Number
2.
Expiration Date
1
2
45
Sample I-9 for
Foreign National in
Non Immigrant Status
H, L, O, E
1
2
46
I-94 Form
1.
Admission (Departure) Number
2.
Expiration Date
1
2
Acceptable Document
47
Unacceptable Document
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
48
Sample I-9 for
H-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.
49
Sample I-9 for
F-1 Curricular
Practical Training
1.
I-94 Departure Number
2.
Expiration date of CPT from I-20 form
1
2
50
I-94 Evidencing Admission of F-1 Student in
Duration of Status
51
Form I-20
1
1.
Document number
52
Form I-20
2.
Expiration date
2
53
Sample I-9 for
F-1 Optional
Practical Training
1
2
54
Employment Authorization Card (EAD)
1.
Alien Number
2.
Document Number
3.
Expiration Date
1
2
3
55
Sample I-9 for
J-1 Nonimmigrant
Status
1.
I-94 Admission (Departure) Number
2.
Expiration date on DS-2019 form
1
2
56
Form DS-2019
1
1.
Document number
2.
Expiration date as I-94 will show
D/S (duration of stay)
2
57
Reverification
1
58
2
I-94 Extension
1.
Document Number
2.
Expiration date
1
2
59
Receipt for Lost, Stolen,
or Damaged Document
60
For More Information
•
US Citizenship and Immigration Services
http://www.uscis.gov/portal/site/uscis
•
Department of Homeland Security
http://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
•
61
I-9 Employer Handbook
http://www.uscis.gov/files/form/m-274.pdf
Q&A
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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.
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