Central Iowa SHRM 25th Annual Legal and Legislative Conference What s New?...Form I-9 Changes and Best Practices

Transcription

1 Central Iowa SHRM 25th Annual Legal and Legislative Conference What s New?...Form I-9 Changes and Best Practices February 24, 2017

2 Outline New Form I-9 requirements and changes How to complete the new Smart Form I-9 Automatic extensions of EAD and I-9 compliance Understanding new Form I-9 instructions New I-9 Handbook for Employers guidance Discuss the higher penalties that are now in effect Discuss why I-9 compliance is more important now than before Most common and costly Form I-9 errors employers make Pros of a self-audit Helpful tips in case of an I-9 audit or site visit

3 Let s First Review the Basics Required to verify employment eligibility and identity of every employee hired on or after November 6, Must complete Form I-9 AFTER hire (offer+ acceptance). Employee must complete Section 1 no later than the FIRST day of work for pay. Employee must bring acceptable documents (List A or List B and List C) within THREE business days of the first day of work. Employer must check documents and complete Section 2 no later than the THIRD day of work. Employer must retain Form I-9 for THREE years after the date of hire OR ONE year after the date of termination (whichever is later).

4 10 Golden Rules 1. Shall not knowingly hire or continue to employ individuals who are not authorized to work in the U.S. 2. Shall timely employee. complete and retain an I-9 form for each 3. Shall not make I-9 paperwork errors or omissions. 4. Shall not use I-9 as a pre-hire screening tool. 5. Shall not commit or participate in document fraud. 6. Shall not commit document abuse. 7. Shall not discriminate on the basis of immigration status, citizenship, or national origin. 8. Shall not engage in unfair immigration-related employment practices. 9. Shall not require employee to be financially responsible for any liability under the employment verification requirements. 10. Shall notify DHS of a Final Nonconfirmation of employment eligibility (E-Verify).

5 Practical Tips Complete new I-9 form on time. Don t ask to see documents before hire. Review Section 1 for accuracy and completion. Examine the presented documents (originals). Don t request to present specific or extra documents. Don t reject a document without a valid reason. Don t refuse to hire only because a document will expire soon. Treat all new hires the same i.e. if copy documents, copy for all not just non-u.s. citizens. Consult before asking too many questions balancing compliance with anti-discriminatory provisions. Comply with retention rules review electronic retention requirements - i.e. audit trail.

6 Old Form I-9

7 New Form I-9

8 NEW Form I-9 Mandatory use for new employees as of January 22, version 11/14/2016 with expiration date of 8/31/2019 ONLY. All previous versions (including 03/08/13) are obsolete. Intent to help employers reduce errors and streamline process. Not required to use for existing employees. Not required to use the electronic version depends on what your onboarding process is. Have a choice and can use a combination of TWO Options: 1. Electronically fillable Smart Form not an electronic form under the regulations, so must print to sign (vendor exception). 2. Unfillable Paper Version must be printed for completion on paper only.

9 NEW I-9 Form Changes Requirements and acceptable documents remain the same (not all are listed in drop-down menu). Instructions (15 pages long) are separated from the form and include specific instructions for completing each field. Must check Preparer/Translator box New I-9 Supplement Section 1 supplemental page for the preparer/translator provides ability to enter multiple preparers and translators. Fields can no longer be left blank use N/A. Use of P.O. Box for an address is permitted. Only one number required: A# OR I-94 OR Foreign Passport.

10 Smart Form I-9 Features Must have Adobe 8 or higher. Easier to complete on a computer. Does not have an electronic signature function (vendor has to re-create). Option to clear the form and start over. When you PRINT completed Form I-9, a quick response (QR) code is automatically generated and can be read by most QR readers (3-D Barcode has been replaced with QR Code in Sections 1, 2 & 3).

11 Prompts to ensure information is entered correctly and fully NOTE: Employer is still responsible for completion and accuracy.

12 Prompts to ensure information is entered correctly and fully NOTE: Employer is still responsible for completion and accuracy.

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14 Option to clear the form and start over.

15 Streamlines selection process & Auto populates fields

16 Streamlines selection process & Auto populates fields

17 Streamlines selection process & Auto populates fields

18 Enhancements include drop-down lists and calendars for filling in dates. NOTE: not all documents are listed

19 On-screen instructions for each field & easy access to instructions

20 On-screen instructions for each field & easy access to instructions

21 Additional information field added (OPT, E-Verify)

22 A dedicated area rather than having to add info in the margins

23 Let s Dissect New Form I-9 START HERE: Read instructions carefully before completing this form. The instructions must be available, either in paper or electronically, during completion of this form. Employers are liable for errors in the completion of this form. ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) an employee may present to establish employment authorization and identity. The refusal to hire or continue to employ an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

24 Old Section 1

25 New Section 1

26 Section 1 - Employee Information Section 1. Employee Information and Attestation (Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.) Last Name (Family Name) First Name (Given Name) Middle Initial - Must use N/A, if not applicable Other Last Names Used (if any) - Must use N/A, if not applicable Address (Street Number and Name) Can use P.O. Box for an address Apt. Number Must use N/A, if not applicable City or Town State ZIP Code Date of Birth (mm/dd/yyyy) U.S. Social Security Number - Must use N/A, if not applicable Employee's Address - Must use N/A, if not applicable Employee's Telephone Number - Must use N/A, if not applicable

27 Section 1 - Attestation 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. I attest, under penalty of perjury, that I am (check one of the following boxes): 1. A citizen of the United States 2. A noncitizen national of the United States (See instructions) 3. A lawful permanent resident (Alien Registration Number/USCIS Number): 4. An alien authorized to work until (expiration date, if applicable, mm/dd/yyyy): Some aliens may write "N/A" in the expiration date field. (See instructions) Aliens authorized to work must provide only one of the following document numbers to complete Form I-9: An Alien Registration Number/USCIS Number OR Form I-94 Admission Number OR Foreign Passport Number. 1. Alien Registration Number/USCIS Number: OR 2. Form I-94 Admission Number: OR 3. Foreign Passport Number: Country of Issuance: Signature of Employee Today's Date (mm/dd/yyyy)

28 Preparer/Translator Certification

29 Preparer/Translator Certification Preparer and/or Translator Certification (check one): I did not use a preparer or translator. A preparer(s) and/or translator(s) assisted the employee in completing Section 1. (Fields below must be completed and signed when preparers and/or translators assist an employee in completing Section 1.) I attest, under penalty of perjury, that I have assisted in the completion of Section 1 of this form and that to the best of my knowledge the information is true and correct. Signature of Preparer or Translator Today's Date (mm/dd/yyyy) Last Name (Family Name) First Name (Given Name) Address (Street Number and Name) City or Town State ZIP Code

30 Old Section 2

31 New Section 2

32 Section 2 Section 2. Employer or Authorized Representative Review and Verification (Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee's first day of employment. You must physically examine one document from List A OR a combination of one document from List B and one document from List C as listed on the "Lists of Acceptable Documents.") Employee Info from Section 1 Last Name (Family Name) First Name (Given Name) M.I. Citizenship/ Immigration Status

33 Section 2 - Documents List A Identity and Employment Authorization OR List B Identity AND List C Employment Authorization Document Title Issuing Authority Document Number Expiration Date (if any)(mm/dd/yyyy) Additional Information

34 Section 2 - Certification Certification: I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States. The employee's first day of employment (mm/dd/yyyy): (See instructions for exemptions)

35 Section 2 - Employer Information Signature of Employer or Authorized Representative Today's Date (mm/dd/yyyy) Title of Employer or Authorized Representative Last Name of Employer or Authorized Representative First Name of Employer or Authorized Representative Employer's Business or Organization Name Employer's Business or Organization Address (Street Number and Name) City or Town State ZIP Code

36 Old Section 3

37 New Section 3

38 Section 3 Section 3. Reverification and Rehires (To be completed and signed by employer or authorized representative.) A. New Name (if applicable) B. Date of Rehire (if applicable) Last Name (Family Name) First Name (Given Name) Middle Initial Date (mm/dd/yyyy) C. If the employee's previous grant of employment authorization has expired, provide the information for the document or receipt that establishes continuing employment authorization in the space provided below. Document Title Document Number Expiration Date (if any) (mm/dd/yyyy) I attest, under penalty of perjury, that to the best of my knowledge, this employee is authorized 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 Today's Date (mm/dd/yyyy) Name of Employer or Authorized Representative

39 Form I-9 Supplement, Section 1 Preparer and/or Translator Certification Employee Name: Last Name (Family Name) First Name (Given Name) Middle Initial Instructions: This supplement may be used if extra spaces are required to document more than one preparer and/or translator assisting an employee in completing Section 1 of Form I-9. The preparer and/or translator must enter the employee's name in the spaces provided. Each preparer or translator must complete, sign and date a separate certification area. Employers must retain completed supplement sheets with the employee's completed Form I-9. I attest, under penalty of perjury, that I have assisted in the completion of Section 1 of this form and that to the best of my knowledge the information is true and correct. Signature of Preparer or Translator Last Name (Family Name) Address (Street Number and Name) Today's Date (mm/dd/yyyy) First Name (Given Name) City or Town State ZIP Code

40 I-9 Improved Instructions 15 pages long provide more guidance. Separate so must ensure instructions are available to employees. Dense and may be confusing because address both electronic and paper versions. Example: Page 9: List B Identity

41 I-9 Employer Manual New I-9 Handbook for Employers Guidance is available (version 01/22/2017) form/m-274.pdf

42 NEW RULE Automatic Extensions of EAD January 17, 2017 rule provides for automatic extensions of validity of certain EADs for up to 180 days. Timely filed to renew EAD Applying to renew in the same category Category is eligible for extension Check EAD category code. Add 180 days to expiration date.

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44 Employers erroneously think I-9 compliance is only important when hiring non-u.s. citizen foreign national workers. False! A company that is not in agricultural or manufacturing sector is safe from an I-9 audit. False! An audit request involves producing I-9 records only for current foreign national employees. False! Using onboarding software is sufficient to ensure I-9 compliance. False!

45 The truth is An I-9 inspection can happen to any employer at any time. No employer is safe from an I-9 audit. A simple error on an I-9 form can cost your company $$$$$$ when an I-9 inspection occurs.

46 I-9 Requires Your Attention!

47 Executive Order and DHS Memo January 25, 2017 Executive Order: Enhancing Public Safety in the Interior of the U.S. Announcing a massive expansion in interior immigration enforcement. February 20, 2017 DHS Memo: Enforcement of the Immigration Laws to Serve the National Interest Outlining an implementation plan for the Executive Order.

48 What to Expect Enforcement is prioritized. Additional 10,000 ICE agents and officers and additional operational and mission support staff. Focus on investigations of employers I-9 compliance. Indication that site visits and I-9 audits will increase more frequent and significant. Expansion of E-Verify use.

49 The I-9 Inspection Fine is How Much? ICE consistently collects about $16 million per year in cases with final orders (litigated and non-litigated). Expected to increase due to new worksite enforcement policy directives. Significant Increase in Civil Penalties Effective August 1, 2016: For example: I-9 Paperwork errors (errors or omissions on I-9 form) per individual: Min. $110 increased to $216 Max. $1,100 increased to $2,156

50 Civil Violations First Offense Second Offense Third or Subsequent Offense MINIMUM MAXIMUM MINIMUM MAXIMUM MINIMUM MAXIMUM Knowingly $539 for each hired, or to have unauthorized knowingly alien recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employ an unauthorized alien in the United States $4,313 for each unauthorized alien $4,313 for each unauthorized alien $10,781 for each unauthorized alien $6,469 for each unauthorized alien $21,563 for each unauthorized alien Failing to comply with Form I-9 employment verification requirements $216 for each form $2,156 for each form $216 for each form $2,156 for each form $216 for each form $2,156 for each form

51 Civil Violations First Offense Second Offense Third or Subsequent Offense MINIMUM MAXIMUM MINIMUM MAXIMUM MINIMUM MAXIMUM Committing or participating in document fraud for satisfying a requirement or benefit of the employment verification process or the INA $445 for each document $3,563 for each document $3,563 for each document $8,908 for each document $3,563 for each document $8,908 for each document Committing document abuse $178 per violation $1,782 per violation $178 per violation $1,782 per violation $178 per violation $1,782 per violation Unlawful discrimination against an employmentauthorized individual in hiring, firing, or recruitment or referral for a fee $445 per violation $3,563 per violation $3,563 per violation $8,908 per violation $5,345 per violation $17,816 per violation

52 Civil Violations First Offense Second Offense Third or Subsequent Offense MINIMUM MAXIMUM MINIMUM MAXIMUM MINIMUM MAXIMUM Failing to notify DHS of a Final Nonconfirmati on (FNC) of an employee s employment eligibility $751 per violation $1,502per violation $751 per violation $1,502 per violation $751 per violation $1,502 per violation Requiring an individual to post a bond or security or to pay an amount or otherwise to provide financial guarantee or indemnity against any potential liability arising under the employment verification requirements $2,156 for each bond the employee paid to the employer. Refund the employee the full amount of the bond. If the employee cannot be found, this refund will go to the U.S. Department of Treasury.

53 Criminal Violations First Offense Second Offense Third Offense Engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens Up to $3,000 for each unauthorized alien Up to 6 months in prison for the entire pattern or practice

54 Penalties for what exactly? No Box Checked No List A or List B and C documents recorded No first date of employment No employer signature Forgot to sign Only List C document recorded Improper List B document provided Issuing authority of DL not provided Left blank field Expiration date of DL not provided Multiple boxes checked

55 Examples of Substantive Violations (not correctible) Failure to timely present an I-9 form. Failure to complete proper version of I-9 form for an employee. Failure to sign the attestation. Failure to review and verify proper documents. Failure to date Section 2 within 3 days. Uncorrected I-9 paperwork errors. NOTE: Watch out for over documentation!

56 Technical/Procedural Violations (can be corrected if good faith attempt has been made) Failure to ensure employee provides complete biographic and document information and dates Section 1. Failure to ensure preparer/translation information and rehire Section 3 are properly completed. Failure to provide employer contact information, date of hire, and date Section 2. Failure to complete all required fields and document information in Section 2. NOTE: Uncorrected technical or procedural failures become substantive violations!

57 How an I-9 audit happens

58 I-9 Fines - Examples Infosys Limited (INFY) - $34 million settlement. Broetje Orchards - $2.25 million settlement. Employer Solutions Staffing Group (ESSG II) - $227,252 not reduced by OCAHO. Golden Employment Group Inc. - OCAHO reduced $305.5K to $209.6K Solutions Group International, LLC - OCAHO reduced $87, to $56,150. Frimmel Management, LLC. total civil penalty $347,500. St. Croix Personnel Services, Inc - OCAHO reduced $16,690 to $5,450. Beyond Cleaning Services OCAHO reduced $6,600 to $0.

59 2 pages 3 sections Lots of Room for Error Hefty Penalties Not your average HR form How to Navigate the Path to Compliance

60 I-9 Regulatory Compliance Best Practices Conduct regular HR Personnel internal trainings: I- 9 completion requirements, error correction, retention, and file destruction. Conduct regular self-audits. Review internal compliance practice and risk assessment. Now is a good time to make corrections and discard forms that you are not required to maintain. Establish consistent internal hiring practices (i.e. copy of documents). Streamline I-9 process and retention procedure. Centralize and separate I-9 storage system. Consider use of E-Verify and IMAGE certification.

61 Thank you! Marina S. Grabchuk Questions? (515)