Update on I-9 Compliance November 2005
Overview of I-9 Laws • The I-9 laws require employers to verify the identity and employment eligibility of every worker hired after November 6, 1986. • Employers are liable for “knowingly” hiring or continuing to employ unauthorized aliens even if the I-9 form is properly completed. • Sanctions can include civil and criminal liability.
BASIC PAPERWORK I-9 REQUIREMENTS • Properly complete I-9 for every new hire since November 6, 1986
U.S. Department of JusticeOMB No. 1115-0136 Immigration and Naturalization ServiceEmployment Eligibility Verification Please read instructions carefully before completing this form. The instructions must be available during completion of this form. ANTI-DISCRIMINATION NOTICE. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee. The refusal to hire individuals because of a future expiration date may also constitute illegal discrimination. Section 1. Employee Information and Verification. To be completed and signed by employee at the time employment begins Print Name: Last First Middle Initial Maiden Name Address (Street Name and Number) Apt. # Date of Birth (month/day/year) City State Zip Code Social Security # Employee’s Signature Date (month/day/year) FORM I-9 I attest, under penalty of perjury, that I am (check one of the following): A citizen or national of the United States A Lawful Permanent Resident (Alien # A_____________________ An alien authorized to work until _____ / _____ / _____ (Alien # or Admission # ___________________________________ I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form. Preparer and/or Translator Certification.(To be completed and signed if Section 1 is prepared by a person other than the employee.) I attest, under penalty of perjury, that I have assisted in the completion of this form and that to the best of my knowledge the information is true and correct. Preparer’s/Translator’s Signature Print Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)
TIPS FOR SECTION 1 • Section 1 must be completed by employee on or before first day of hire • Insure that employee checks box, and signs and dates the form • If employee checks box 2, A # must be entered • If employee checks box 3, expiration date and A# or I-94 number must be entered
MOST COMMON ERRORS ON SECTION 1 • Attestation Box not checked • “A” number or work authorization date is missing • Attestation date is not completed • Identification information missing • Incorrect boxes checked
FORM I-9 SECTION 2 Section 2. Employer Review and Verification. To be completed and signed by employer. Examine on document from List A OR examine one document from List B and on from List C as listed on the reverse side of this form and record the title, number and expiration date, if any, of the document(s) List A OR List B AND List C Document title: _________________________ ______________________________ ___________________________ Issuing authority: ________________________ ______________________________ ___________________________ Document #: ___________________________ ______________________________ ___________________________ Expiration Date (if any): ___ / ___ / ___ ___ / ___ / ___ ___ / ___ / ___ Document #: ___________________________ Expiration Date (if any): ___ / ___ / ___ CERTIFICATION - I attest, under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment on (month/day/year)____ / ____ / ____ and that to the best of my knowledge the employee is eligible to work in the United States. (State employment agencies may omit the date the employee began employment.) Signature of Employer or Authorized Representative Print Name Title Business or Organization Name Address (Street Name and Number, City, State, Zip Code) Date (month/day/year)
TIPS FOR SECTION 2 • Section 2 must be completed by company representative within 3 business days of hire • Verification of IDENTITY and WORK AUTHORIZATION • Company representative must review ORIGINAL documents • Attach copies of documents presented to the I-9
MOST COMMON ERRORS ON SECTION 2 • Employer under-documents or over-documents I-9 • Employer accepts faxed copies of documents • Employer lists US visa instead of I-94 number in List A • Signature and date of company rep. is missing • Employer accepts receipt for EAD extension
FORM I-9 – SECTION3 Section 3. Updating and Reverification. To be completed and signed by employer. A. New Name (if applicable) B. Date of rehire (month/day/year) (if applicable) C. If employee’s previous grant of work authorization has expired, provide the information below for the document that establishes current employment eligibility. Document Title: _________________________ Document #: __________________ Expiration Date (if any): ____ / ____ / ____ I attest, under penalty of perjury, that to the best of my knowledge, this employee is eligible to work in the United States, and if the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual. Signature of Employer or Authorized Representative Date (month/day/year) Form I-9 (Rev. 11-21-91) N
TIPS FOR SECTION 3 What does NOT need to be reverified? • Green cards (i.e., permanent resident cards or I-551 resident alien cards) • Driver’s license and other identity documents • U.S. Passports
MOST COMMON ERRORS ON SECTION 3 • Reverification not completed in a timely manner • Document provided was not acceptable • Over-documentation
WHO TO I-9 • I-9 employees, not independent contractors • Do not I-9 employees working outside the United States or its territories • All employees in the US, even if on payroll abroad • I-9 temporary and part time employees
CONTRACTORS & TEMPORARY AGENCIES • No I-9 form is needed for true independent contractors • If you contract with a temporary agency for personnel, follow the following guidelines: • Clearly identifying the agency as the “employer” • Indicate the agency will comply with State and Federal requirements including, but not limited to, proper I-9 completion and maintenance. • Include an indemnification clause • Entering into a contract with “knowledge” of unlawful status can remove the independent contractor protection.
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 an original document within 90 days of hire (docket this date)
AUTHORIZING AN AGENT TO COMPLETE AN I-9 • An employer may delegate the authority to complete an I-9 • The employer retains the liability for errors • Select someone responsible • Provide written guidance and contact information
REHIRING • No I-9 needed if employee is “continuing to be employed” • Leave of absence, disability, vacation, etc • Promotion or demotion • Strike, temporarily laid off • Disciplinary suspension • Transfer between one distinct unit of employer to another • I-9s may be reused if completed within 3 years of date of rehire (new I-9 recommended)
MERGER & ACQUISITION • New I-9s not required if “successor in interest”: • Change in location • Employs some or all of a previous employers workforce in merger, acquisition or sale of stock or assets • Multi-employer association with the same collective bargaining agreement. • If new company is successor in interest, then it assumes the liabilities for the old I-9s. • To avoid “liability” must complete new I-9s
I-9 Paperwork Penalties • Penalty: $100 - $1,100 per I-9 for mistakes or omissions
What is Knowledge? • Actual Knowledge Actual knowledge includes knowledge of supervisors at company • Constructive Knowledge Constructive knowledge includes circumstances where the company "should have known“
Actual Knowledge • Example: Employee states that he has a false employment document. • Even if the employer completes the I-9 employment eligibility verification procedure properly, it will still be subject to penalties if it is has knowledge of the unauthorized status of the employee.
Constructive Knowledge • Knowledge not limited to actual knowledge • If employer has knowledge that would lead a reasonable person to believe that an individual is not authorized to work, the employer is under a duty to investigate. • Example: Employee presents a green card during I-9 verification but employee later requests company to sponsor him.
INS Rules – 8 CFR § 274a(1) • An employer is deemed to have knowledge if: • Form I-9 not completed in good faith • Continues to employ alien after work auth expired • Possesses information that alien not auth to work • Acts with reckless and wanton disregard • Knowledge cannot be inferred from: • Employee’s foreign appearance or accent • Rumor or hearsay
Failure to Verify/Reverify • Employer has constructive knowledge when: • Employer failed to complete I-9 form and employer later found to be unauthorized. U.S. v. American Terrazzo Corp, 6 OCAHO 91 (1989). • Employer failed to properly complete I-9 form. U.S. v. Walden Station Inc., 8 OCAHO 1053 (2000). • Employer failed to reverify work authorization of employee with time-limited work authorization. U.S. v. China Wok Rest., 4 OCAHO 608 (1994).
INS (ICE) Notification • Action is required when employer is informed by INS (ICE) that employee is illegal alien. • Court held that employer had a duty to act when INS verbally provided the employer with information that various alien registration numbers did not match INS records. Mester Manufacturing v. INS, 879 F.2d 561 (9th Cir. 1989). • Irrelevant by what means an employer gains knowledge from the INS (ICE).
Acting in Reckless and Wanton Manner • INS infers knowledge if employer acts with reckless and wanton disregard for legal consequences of permitting another individual to introduce an unauthorized worker into workforce. • Employer which fails to make any effort to satisfy itself that the individual is authorized to work is liable.
Knowledge of Employees is Imputed to the Employer • Employer is chargeable with, and bound by, the knowledge of its agents if agent acting within scope of his authority. • Example: Manager told by employee that he is in the U.S. unlawfully. Knowledge of manager regarding illegal status may be imputed to the company.
Timeliness of Reverification • Once employer has knowledge, an employer must exercise due care to verify that alien is authorized to work. • Courts have held that “due care” is met if employer immediately suspends employee and asks him/her to obtain proof of employment eligibility. If employee fails to present such documentation within a reasonable time, employee should be terminated.
Civil Penalties for Hiring Violations • First offense: Civil fine of $250 to $2,000 per unauthorized worker • Second offense: Civil fine of $2,000 to $5,000 per unauthorized worker • Third or more: Civil fine of $3,000 to $10,000 per unauthorized worker • Debarment from government contracts
Criminal Liability for “Pattern and Practice” • Regular, repeated and intentional activities to hire/continue to hire illegal aliens can be punished criminally. • “Pattern or practice”: In addition to civil penalties, criminal penalties of up to $3,000 per worker and up to six (6) months imprisonment
Additional Criminal Liability • Document Fraud • False Statements • Fraud • Harboring • Conspiracy • Perjury
Personal Liability for Actions • INS defines the term “employer” to include a person or entity, including an agent or anyone acting directly or indirectly in the interest of an employer. • Sanctions may be extended beyond the employing entity, including corporate officers.
Common Problems and Strategies • Employee comes to employer with new SSN that is different than one employer was given at time original I-9 completed.
Common Problems and Strategies (cont.) • An employee informs employer that another worker is an “illegal” • Employer cannot make further inquiry about employment eligibility or request additional documents from employee based on mere hearsay and rumor. • IRCA does not require further inquiry in these circumstances.
Common Problems and Strategies (cont.) • Supervisor recognizes workers who were included in a prior INS raid
Common Problems and Strategies (cont.) • During a social engagement outside of the company, supervisor learns that employee is illegally in the U.S.
OTHER PENALTIES • Civil liability for document fraud • Debarment from government contracts
BASIC I-9 DISCRIMINATION VIOLATIONS • Document Abuse • Citizenship Status Discrimination (distinguished from National Origin Discrimination) • Retaliation
DOCUMENT ABUSE • May not ask for more or different documents • May not refuse to accept valid documents presented • Should not specify which documents will be acceptable • Penalty: $100 - $1,000
CITIZENSHIP STATUS DISCRIMINATION • May not treat persons in the "PROTECTED CLASS" differently for purposes of hiring or firing. • Penalty: $2,000, $5,000, $10,000
“PROTECTED CLASS” INCLUDES • U.S. Citizens or Nationals • Permanent Residents • Refugees • Asylees • Temporary Residents under the legalization program (Special Agricultural Worker or amnesty applicant)
I-9 "PROTECTED CLASS" DOES NOT INCLUDE: • Non-Immigrants Such As: - F-1 - J-1 - H-1 • Asylum Applicants • Illegal Aliens
NO DISCRIMINATION IF REQUIRED BY: • Law • Regulation • Executive Order • Government Contract • As Determined By Attorney General
RECRUITING ISSUES • How do I identify who needs a visa? • What questions can I ask?
OFFER GUIDELINES • Do not discriminate against members of “protected class” • Do not treat members of “protected class” differently from one another • Use written questionnaire rather than verbal questions
WHAT TO ASK: SAMPLE FORMAT #1 • Are you legally authorized to work in the United States? yes ____ no _____ • Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status?) yes ____ no _____
WHAT TO ASK: SAMPLE FORMAT #2 • Are you one of the following: • Citizen or National of the United States, • Lawful Permanent Resident, • Refugee, • Asylee, or • Temporary Resident (does not include non-immigrant visas such as F-1, J-1, H-1,etc.) yes____ no____
WHAT TO ASK: SAMPLE FORMAT #2 (cont.) • If employer is willing to consider sponsoring applicant outside “Protected Class”, then you may also ask, “If your answer was ‘no’, do you have authorization to work, and if so, please explain”
Update on I-9 Compliance May 29, 2002