New Smart Form I-9 Compliance: Understanding Changes to the Employment Verification and Recordkeeping Process

Transcription

1 New Smart Form I-9 Compliance: Understanding Changes to the Employment Verification and Recordkeeping Process Presented by: Elaine C. Young, Esq. Kirton McConkie Thursday, March 16, :30 p.m. to 3:00 p.m. Eastern 12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific or For On-Demand purchasing information, contact customer service at: or BLR and HR Hero Business & Legal Resources and HR Hero. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission. This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI website at Business & Legal Resources (BLR) is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CP or SHRM-SCP. This program is valid for 1.5 PDCs for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

2 New Smart Form I-9 Compliance: Understanding Changes to the Employment Verification and Recordkeeping Process Presented by: Elaine C. Young, Esq. Kirton McConkie March 16, 2017 Learning Objectives At the end of this presentation, you should be able to: Understand the new Form I-9 features Catch common errors Find answers to tricky I-9 questions in USCIS guidance Avoid claims of document abuse or discrimination Avoid hiring someone not authorized to work Avoid high I-9 violation penalties

3 IRCA: Immigration Reform and Control Act of 1986 It s illegal to: knowingly hire, or continue to employ, an unauthorized worker discriminate based on citizenship or national origin ask for extra documents (document abuse) retaliate or intimidate ICE can punish: Whoever prepared the I-9 Anyone else who knew, including C-level IRCA Says... Use an I-9 1. Hire only authorized workers 2. Complete an I-9 for all workers within 3 business days of hire (or first day of work for some) 3. Retain the I-9 for specified period 4. Treat all workers equally no citizenship or national origin discrimination

4 Who Completes the Form? Section 1 - ONLY the Employee or Preparer/Translator Section 2 - Employer Can be the employer s authorized representative What about notaries? Remote hires Section 3 Employer Only to rehire, reverify, or name change Timing Section 1 AFTER the job offer NO LATER than the FIRST day of employment Section 2 No later than 3 BUSINESS DAYS after employment Monday Thursday rule Businesses open on weekends must consider weekends as business days for this rule

5 Timing Section 3 When is reverification necessary? By the date the previous work authorization expires When the employee is rehired, IF Hired within three years of the date the original I-9 was completed Not a seasonal worker with continued expectation of ongoing employment Name changes on Section 3 are advisable, not required Section 3 can be tricky! REHIRE versus REVERIFY REVERIFY means to check someone s work authorization again Never use section 3 to reverify a US citizen; their work authorization does not expire Never use section 3 to reverify a US permanent resident (green card); their work authorization does not expire even though their green card may bear an expiration date Never reverify List B documents (I.D.s) Instead: ONLY re-verify documents that evidence work authorization i.e., List A and List C

6 Section 3 REHIRES DO use Section 3 for REHIRES of all workers, including US citizens and US permanent residents How to: For US citizens and US permanent residents Enter the DATE of rehire in Section 3 Employer signs That s all! New v. Old I-9 - Section 3 Re-verify on the original I-9 as a general rule Re-verify on a new I-9 if: original I-9 s section 3 has already been used, OR employee has updated List A/C documents, AND there is a new version of I-9 in use There IS a new version of I-9, so plan to STOPusing old I-9 (unless it s just a name change).

7 *NEW* *SMART* Form I-9 New Form Section 1

8 New Form -Preparer/Translator- New Form Section 2

9 New Form Section 3 New Form List A / B / C

10 New Form Validity All new hires AND reverifications done after January 21, 2017 should be on the new version of I- 9. *NEW* Handbook for Employers M-274 This book should be at your fingertips if you complete I- 9s. Changes to the Form It s Smart Catches many inconsistencies Pre-populates with N/A Pre-populates with issuing authorities Automatic drop-downs Every field requires an N/A Specific document and issuing authoring naming standards Big additional information field acts as a margin

11 More Features of New Form I-9 Preparer / Translator Section Can be expanded online Requires selection of a value even if no preparer or translator was used Prompts & Helps Hover over field for helpful pop-up Automatic population of some fields Online version highlights missing fields when employees clicks to sign Best Practices Avoiding Errors

12 Section 1 Other Names Used Replaced Maiden Name Applies to men and women, but only to LAST names. Foreign address can only be used by border commuters Date of birth must be written as mm/dd/yy SSN voluntary UNLESS: Employer uses E-verify & employee has an SSN Telephone and still voluntary Employee s Declaration of Status

13 TIP: Check if employee indicates that work authorization will expire. It if will, calendar to remind employee 90 days before that date. Remind to bring updated List A / C documents on or before that date. Electronic Signatures: Allowed in some cases. The system used to capture the electronic signature must include a method to acknowledge that the attestation to be signed has been read by the signatory. Remember: Employer Liable for Section 1 Errors Preparer/Translator Employee must indicate Yes or No MUST complete this section if: Employee needs any assistance, including language, disability Information is pre-populated by an HR/onboarding program A minor does not produce a List B identity document *Employee signs even if someone else prepared

14 Completing Section 2 Define business days for I-9 completion: any day the business is open. *Many businesses are open on weekends* Employee must choose a List A document - OR - a combination of List B and C Example: If LPR presents DL and SSN, do not also ask them for an LPR (green) card. Section 2 Best Practices If company has more than one business location, use the address of the work location where the I-9 is being completed If you complete section 2 before the first work day, and the employee ends up starting work on a different day than you had indicated: Cross out the original day Put the correct start date Initial the change

15 Receipt Rule: 3 Ways GENERALLY, cannot accept receipt for an EXPIRED document ACCEPTABLE RECEIPTS: Lost, stolen, or damaged. Works for List A/B/C. After 90 days, employee must show the replacement document. Permanent residents can show a temporary I-551 stamp and photograph in lieu of the actual permanent resident card (green card) if they are choosing to provide List A. Stamps usually valid for ONE YEAR. Must show the actual green card when the stamp expires. I-94 with refugee admission stamp as a List A document. After 90 days, must show either an EAD (List A) - OR - a List B document + unrestricted Social Security card. Receipts Write Receipt next to the document title and the last day the receipt is valid. Calendar to follow up When receipt expires, cross out receipt and accompanying document number. Record information from actual document Initial and date the change. Remember: Do not accept receipts for new or renewal EADs only replacement EADs that were lost, stolen or damaged

16 A Note about Minors Minors under age 18 may not be able to present a List B (identity) document In this case the EMPLOYEE DOES NOT SIGN SECTION 1 They enter individual under 18 in the signature block and date Their parent or legal guardian completes the Preparer/Translator section For the List B Document in Section 2 the employer writes individual under age 18 and takes a List C document (or instead of List B/C, takes a List A document) How to Record Auto-Extensions of Work Authorization Employee will present EAD + Receipt for New EAD with matching Category Codes (except TPS beneficiaries) See page 13 of the new version (1/22/17) of M-274 Handbook for Employers

17 Nonimmigrant Categories Extensions of Stay Page 25 of M-274 Handbook for Employers Example: Porting of an H-1B worker Don t have to wait for the receipt notice for your organization s I- 129 in order to I-9 them Example: Extension of an H-1B petition FIRST: Upon filing the extension, keep a copy of the new Form I- 129, proof of payment for filing a new Form I-129, and evidence that you mailed the new Form I-129 THEN: Substitute these for the I-797C receipt notice when it arrives THEN: When I-129 is approved, enter the document title, number and expiration date listed on the approval notice, in Section 3 of Form I-9 Section 2 Common Errors Document numbers and title are written incorrectly Especially for foreign nationals presenting List A Timeliness Employer does not complete Section 2 by the third business day after the employee began employment (or first day of employment if employment lasted 3 business days or less) Document Abuse Employer asks for more or different documents

18 A Note on Document Abuse &Discrimination Employer s Intent: employer cannot reject reasonably genuine-looking documents for purpose of discriminating based on citizenship/national origin Only work-authorized individuals are protected from document abuse. Several cases involving law enforcement, staffing, municipalities requiring US citizenship Only if required by law, federal contract or executive order REAL-ID: Can you reject from List B a driver s license that says federal limits apply? NO. How does this affect hiring? You CAN state that applicants must be authorized to work in the United States You CANNOT State that they must be US citizens or permanent residents (unless required by law, executive order, government contract) You CANNOT require applicants to complete an application form online that requires an SSN, since some work authorized individuals have not received theirs yet (but upon hiring you must ask for SSN for payroll tax purposes) You CANNOT state that you prefer H-1B workers

19 Section 3 Common Errors REVERIFICATION Expiration dates not tracked - not completed at all Timeliness employer completes Section 3 after the documents have expired TIP: Since you do not have to reverify USCs and LPRs in Section 3, you will only be reverifying aliens authorized to work : Discuss with employee and immigration counsel need to start work authorization renewal early 240-day rule Fixing Errors Prep for Audit

20 Technical v. Substantive Errors Smart I-9 helps to avoid technical errors Usually these are errors that do not go to whether the person was authorized to work During an ICE audit, ICE will take I-9s (sometimes for weeks or months) and then provide a list of technical violations and give employer 10 days to fix those Employers can still be fined for substantitive errors completed after the Notice of Inspection Common Error Checklist Employee failed to enter N/A or other names used in Section 1. Failed to include a SSN in Section 1 when the employer is enrolled in E-Verify (or N/A if applicable). Failed to check a status box Failed to enter Alien Number if Lawful Permanent Resident box is checked Failed to provide date of expiration of work authorization Dated section 1 with date of birth instead of date of completion

21 Common Error Checklist Employer Failed to write the employee s name in the field at the top of page 2 in section 2 Failed to include all information (title, issuing authority, document number, expiration date) Failed to include the date of hire Failed to enter the business name and/or address Failed to sign and/or date section 2 Used the incorrect version of the form Substantive Violations Employee does not provide name Employee does not attest to citizenship / LPR / alien status Employer does not sign section 2 No recertification within 90 days of using receipt rule I-9 not completed at all I-9 not available to give to ICE for inspection

22 Correcting Errors Technical errors can be corrected after a Notice of Inspections, and within 10 days of receiving a Notice of Violations Correct the failure; initial and date the correction Employee corrects section 1; employer corrects section 2 or 3 Keep a note in the file regarding uncorrectable errors, such as where the employee no longer works for the company and cannot correction section 1 If I-9 not completed at all before, do not use an old version of I-9; use new version. Retention of I-9 Forms: Best Practices

23 Retention of Forms Keep separate from personnel files Separate area for terminated employees, scheduled for purge Track expiration dates of List A employment documents for: aliens authorized to work those presenting receipts Electronic Retention of Forms If you complete or retain I-9s electronically, you must keep a file that includes documentation of the business process that creates, modifies and maintains the I-9, and establishes the authenticity and integrity of the forms, such as audit trails. Only I-9 pages with data on them need to be retained

24 To Keep or Not To Keep Copies? No requirement to keep copies EXCEPT: E-verify users must keep copies of federal governmentissued identity documents that trigger the photomatching tool: US passport or US passport card EADs Permanent Resident cards (green cards) If you do keep copies of other documents, they must be: Retained in a nondiscriminatory way (not just for people with unique documents/foreign nationals) Retrievable, provided to ICE on request during audit Kept with the employee s I-9 Destroying and Purging I-9s Store I-9 for ALL CURRENT employees (hired on or after 11/06/86) Store I-9 for TERMINATED employees until: One year from date employment ends, or Three years from date of hire Whichever is later EXAMPLE: Employee resigns on June 1, 2017; they were hired and completed their I-9 on June 1, Since they worked for the company more than three years, when they leave the company, set the purge date to ONE YEAR AFTER EMPLOYMENT ENSD. You can purge that I-9 on June 1, 2018.

25 Thank you. Questions? Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

26 SPECIAL OFFER for Webinar Attendees! $50 off registration with code RECRUIT50 RecruitCon 2017 is the must-attend conference for HR professionals looking to supercharge their recruiting and talent management programs With the Bureau of Labor Statistics predicting 55 million job openings in this decade, including an average of 10,000 Baby Boomers retiring everyday, it s essential that your recruiting program is prepared to fill this gap with qualified, lasting talent. RecruitCon 2017 will arm you with the tools and tactics you need to streamline hiring processes, sharpen interview skills, improve onboarding, and more! At RecruitCon, the nation's top experts will reveal proven best practices for: Getting executive team buy-in on the recruiting resources you need Selecting the right metrics to measure the effectiveness of your hiring efforts Understanding the most impactful strategies to attract and retain veterans, Millennials, and other key demographics Implementing diversity strategies that really work Learning the very latest recruiting technologies and leveraging existing social platforms And more proven ways to supercharge your talent acquisition program! BOOST YOUR HIRING PROWESS AND CONQUER YOUR RECRUITING CHALLENGES! REGISTER AT RECRUITCON.BLR.COM. SAVE $50 ON FULL REGISTRATION WITH COUPON CODE RECRUIT50.

27 Elaine C. Young, Esq. Elaine Young is a member of Kirton McConkie s International section. She advises a wide range of employers, including large multinationals and small businesses on the immigration, tax, and benefits aspects of cross-border employment. Her practice also includes helping employers understand and develop compliant I-9 and E-Verify practices. Ms. Young writes the HR Hero monthly Utah Employment Newsletter column and for the Federal Employment Law Insider on immigration matters and serves as editor of the Immigration chapter of BLR s HR Guide to Employment Law.