I-9 Compliance Training University of Central Arkansas November 28, 2018

Transcription

1 Training University of Central Arkansas November 28, 2018 G E O R G E R E R N S T G E R N S C G W G. C O M C R O S S, G U N T E R, W I T H E R S P O O N, & G A L C H U S, P. C. L I T T L E R O C K A N D N O R T H W E S T A R K A N S A S H T T P : / / W W W. C G W G. C O M

2 Introduction Discuss I-9 Compliance and Audits Issues with Students and EADS

3 What is Form I-9? Used to document that each employee hired after Nov 26, 1986 is authorized to work in the US All employees must complete a Form I-9, regardless of national origin, if hired after Nov 26, 1986 Refusal to hire an individual because the documentation presented has a future expiration date may constitute illegal discrimination Employers must retain completed I-9s for either 3 years after the date of hire, or one year of the date employment ends, which ever is later

4 Who is required to fill out an I-9 Employee: Must complete Section 1 at the time of hire Hire means when the employment in exchange for wages or remuneration begins BEST PRACTICE: Employee must complete Section 1 no later than the first day of employment Includes employment even for only one (1) day Employee may complete Section 1 of Form I-9 before the time of hire, but no earlier than acceptance of job offer (cannot use I-9 to pre-screen for employment)

5 Who is required to fill out an I-9 Completing Section 1: Have the employee fill out Section 1 Make sure all the boxes are filled out Must the employee provide social security number? Only mandatory if using E-verify, then it is permissible but not mandatory that the employee provide social security number. Providing address or telephone number is voluntary Ensure that the employee has selected the appropriate box explaining their current status, e.g. US Citizen, Permanent Resident, etc. Ensure that the employee signs and dates Section 1 Check the dates for date of birth and signing date Preparer / Translator section should only be completed if someone other than the employee completed the Form I-9 in the employee s presence; however, be sure to select the box indicating no preparer/translator, if no preparer / translator was used

6

7 Who is required to fill out an I-9 Employer: Must complete Section 2 within three (3) business days of hire Ensure that Section 1 is completed before finishing Section 2 Remember to fill out the employee s Last Name, First Name and Middle Initial from Section 1 and corresponding number status from Section 1 Must ask for either an unexpired, original LIST A document or LIST B & LIST C Document

8

9 Good Faith Document Inspection Reasonable Inspection of the Documents Examine each original (not copies!) of document(s) to determine if the document reasonably appears to be genuine Look to see if the document looks normal, has all the correct information If you reasonably determine that a document is not legitimate, you may reject and ask for another document If you are not sure whether it is legitimate or not, err on the side that it is legitimate The person that examines the document, must be the same person that signs the certification Avoid Document Abuse If an employee presents a valid LIST A document, or valid LIST B and LIST C documents, no further documentation should be presented to the employer

10 Completing Section 2 Enter the Employee s name and the number of the corresponding Citizenship/Immigration Status Record the Document Title E.g. U.S. Passport, AR Driver s License, Social Security Card, etc. Fill out this part as accurate as possible Make sure that it is clear without accompanying documentation what documents was examined for I-9 verification purposes Record Issuing Authority Do not skip this step, even for Social Security Cards! Not all Social Security Cards are from the same issuing authority (SSA or DHHS). For Driver s License, place DMV beside the issuing state (i.e., AR DMV) Enter Expiration Date If there is no expiration date, e.g. Social Security Cards, hand write none under expiration date Social Security Cards with limitations (E.g. Subject to DHS Authorization) require another document to prove work authorization

11 Completing Section 2 Certification Remember to include employee s first day of employment Fill out all of the fields Don t forget to include employer s business name and address

12 Completing Section 2 Keeping Photocopies of Documentation UCA requires a photocopy of the documents presented Attach the copies to the back of the I-9

13

14

15 Important elements to remember when completing I-9s Note expiration dates on documents proving work authorization, remember to reverify work authorization, when documents expire, e.g. I-94s, EADs, etc. Note: you do not reverify Green Cards or U.S. Passports, even if they expire The Preparer/Translator Certification Over documentation

16 Fixing Errors Standard is Good Faith compliance Line through the portions of the form that contain incorrect information, then enter the correct information Always initial and date corrections Do not use white-out. Line through the portions of the form that contain incorrect information, then enter the correct information. Initial and date NEVER BACK DATE A CORRECTION! Input the date of rehire, if the employee is hired within three (3) years when the I-9 was originally completed

17 Common Mistakes That May Violate Anti-Discrimination Provisions Unless using E-verify, asking an employee to provide a specific document with his or her Social Security Number, or asking for a Social Security Number Considering a future employment authorization expiration date in determining whether an employee is qualified for a particular job Document Abuse Best Practice: Uniformity in Process!

18 Audits Beginning April 2009 ICE began focusing its worksite enforcement activities on auditing and inspecting employer s hiring records The Trump Administration has dramatically increased the number of audits, and educational institutions, such as Universities are not immune from auditing by ICE I-9 audits can be followed by criminal warrants and serious fines and penalties During an I-9 inspection ICE personnel will review I-9 records noting alien registration numbers and social security numbers of employees, and then verify those numbers against government records May receive notice of intent to fine (NIF) Fines are $200-$2,000 per incident based on failure %

19 Common Questions May I ask to see the document with the Alien Number or Admission number? Answer: No May I accept an expired document? Answer: No Exception, Social Security Cards, Birth Certificates Can I accept a photo copy of a document presented by the employee? Answer: No Can I complete Section 1 for the employee? Answer: No

20 F-1 Nonimmigrant Students Foreign students pursuing academic studies and/or language training programs are classified as F-1 nonimmigrants. Designated school officials (DSO) at certified schools issue Form I-20, Certificate of Eligibility for Nonimmigrant (F- 1)Students. F-1 nonimmigrant foreign students may be eligible to work under certain conditions, including: On-campus employment, Curricular practical training, Off-campus employment based on severe economic hardship, Employment sponsored by an international organization, and Optional practical training. Foreign students in F-1 nonimmigrant status may work on campus without the approval of a DSO or USCIS.

21 F-1 Nonimmigrant Students To complete Section 2, the combination of the F-1 student s unexpired foreign passport and Form I-94/94A Arrival Departure Record indicating F-1 nonimmigrant status is a List A document for on-campus employment. Foreign students in F-1 nonimmigrant status may work: On the school s premises, including on-location commercial firms that provide services for students on campus, such as the school bookstore or cafeteria At an off-campus location that is educationally affiliated with the school. On-campus employment is limited to 20 hours a week when school is in session. If they work more than 20 hours a week when school is in session they are considered out of status and their student visa may be revoked and they will be deported.

22 F-1 Nonimmigrant Students Curricular practical training (CPT) allows students to accept paid alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school. The CPT program must be an integral part of the curriculum of the student s degree program. The DSO must authorize CPT on the student s Form I-20. The employment end date shown in the employment authorization section of the Form I-20 should be entered in Section 1 as the date employment authorization expires.

23 F-1 Nonimmigrant Students The following documents establish the student s identity and employment authorization for Form I-9 purposes and should be entered in Section 2: List A documents include the combination of: Unexpired foreign passport; Form I-20 with the DSO endorsement for employment; and Form I-94/Form I-94A indicating F-1 nonimmigrant status. Or List B and List C documents. The F-1 student could present a List B document (such as a state driver s license) and under List C #7, Form I-94 indicating F-1 nonimmigrant status with a properly endorsed Form I-20. The documents by themselves do not qualify.

24 F-1 Nonimmigrant Students OPT Optional Practical Training OPT provides practical training experience that directly relates to an F-1 student s major area of study. An F-1 student authorized for OPT may work up to 20 hours per week while school is in session and full-time (20 or more hours per week) when school is not in session. After completing their course of study, students also may participate in OPT for work experience. USCIS may authorize an F-1 student to have up to 12 months of OPT upon completion of their degree program. The student must obtain an EAD from USCIS before they are authorized to work. The student may not begin employment until the date indicated on the EAD. The EAD establishes the student s identity and employment authorization for Form I-9 purposes and the employer should record the card number and expiration date under List A in Section 2. When the student s EAD expires, the employer must reverify the student s employment authorization in Section 3.

25 F-1 Nonimmigrant Students An acceptable Form I-20 for CPT must have all employment authorization fields completed. These fields include employment status, employment type, start and end date of employment, and the employer s name and location.

26 Issues with DACA What is DACA Deferred Action for Childhood Arrivals Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion For purposes of future inadmissibility based upon unlawful presence, an individual whose case has been deferred is not considered to be unlawfully present during the period in which deferred action is in effect An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect However, deferred action does not confer lawful status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence May receive work authorization

27 Issues with DACA I-9 issues with DACA List A Document Foreign National Worker will likely present EAD, since this is the only document that will prove work authorization If the employee presents reasonably genuine EAD then you can rely on the information presented Employer may not request that the employee provide additional proof that his or her case has been deferred or that he or she is authorized to work When the validity period of the EAD expires, you must re-verify using Section 3 of the I-9 to ensure the employee is still authorized to work Cannot pre-screen candidates by asking about the nature of an EAD

28 Issues with EADS Do I have to hire someone with a conditional 2 year EAD? Answer: Yes Discrimination On the basis of national origin Cannot pre-screen candidates by asking about the nature of an EAD

29 Conclusion George Ernst