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7

Identity and Eligibility

Confirmation –E-Verify and Other Tools

Legal compliance: Verify applicants’ employment eligibility

Risk management: Know who you are hiring

Stephen Robertson Nathaniel Brown Garth Day

1996 – Berkeley, SC

• Domestic violence

• DWI

2001, 2002 – Navarro, TX

• Criminal Trespass

• Theft

• DWI

Sometimes, we can even help the applicant.

Employment process

Background check

Consent-based SSN Verification

I-9 documentation

E-Verify

Legal and regulatory environment

Immigration Reform and Control Act of 1986 (IRCA)

• Illegal to knowingly recruit, refer for a fee, or hire aliens unauthorized to work

• Requires verification of employment authorization of all new hires after November 6, 1986 (Form I-9)

• Prohibits discrimination based on national origin or citizenship status (except for unauthorized aliens)

Title VII of the Civil Rights Act of 1964

• Prohibits discrimination (without a legitimate business need) based on national origin

• Also prohibits discrimination “because an individual has the physical, cultural or linguistic characteristics of a national origin group.”

ICE has shifted its focus from workers to employers

• 2009 – ICE steps up “silent raids” – paperwork audits

• April 2011 - owners of Chuy’s Mesquite Broiler franchises indicted for hiring unauthorized workers

• September 2011 – 5 managers (including the HR manager) at IFCO Systems plead guilty to hiring unauthorized aliens

Employment process DON’Ts

• “Are you a US citizen?”

• “Place of birth:”

• “Where is your accent from?”

• “Do you always wear that thingaround your head?”

• “If not a US citizen, please provide copies of your work authorization with your application.”

• Accept Individual Taxpayer Identification Numbers (ITINs) in lieu of SSNs

Employment process DOs

• "In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire."

• Collect information necessary for a thorough background check

• Carefully define job requirements.

Background check reliability depends on identity research.

Employment

ApplicationName

DOB

SSN

Prev. addresses

ID Database

Associated Names

SSN Issuance

Address history

Driving records help corroborate identity

• Available in most states withonly the standard backgroundcheck authorization.

• Provides name, date of birth,and address of license holder.

• Does NOT provide license photo or verify that the person listed is your applicant.

Consent-based SSN verification (CBSV)

• The ONLY legal pre-employment means of verifying info with the Social Security Administration:

Name

Date of birth

Gender

Social security number

• Available through background screeners or directly from the SSA ($5,000 set up and $1.50 per transaction)

• Requires SSA-89 be completed by applicant

• Does NOT verify that the person listed is your applicant.

Form I-9 Section 1

Form I-9 Section 1

When must Section 1 be completed by the employee?

Form I-9 Section 2

Form I-9 Section 2

When must Section 2 be completed by the employer?

Form I-9 acceptable documents

Form I-9 Section 3

Completed by employer when:• Previously provided work authorization documents

haveexpired (new or renewed authorization documents must be provided – may be a different document)

• Employee rehired within three years of originalI-9 completion

• Employee name change

Form I-9 Section 3

Do not reverify:• US citizens• Permanent resident card (Form I-551)• List B documents (drivers’ license,

government/voter ID, etc.)

Form I-9 storage

• Must be available for inspection by DOL, DHS, or DOL with three days’ notice

• May be electronic (quality scans or e-signature) or paper

• Typically stored separate from other records to facilitate inspection

• May be stored onsite, offsite, at each work locationor centrally for the company – whatever makes sense for the employer so long asquick access is possible

Form I-9 retention

Must be retained:

• 3 years after hireOR

• 1 year after termination

whichever is LATER

Form I-9 retention

1.  Date the employee began work for pay 1. __________

      A.  Add three years to the date on line 1. A. __________

2.  The date employment was terminated 2.  __________

     B.  Add one year to the date on line 2.  B.  __________

3.  Which date is later; A or B? 3.  __________

      C.  Enter the later date. C. __________

 Employers must retain Form I-9 until the date on Line C.

What is E-Verify?

• Cooperative program between the Social Security Administration and the Department of Homeland Security’s US Citizenship and Immigration Services

• Online system for verification of:SSN, name, and DOB matchEligibility to work in the USPhoto match for some documents

• Employers must sign a Memorandum of Understanding with SSA and USCIS

• Employers must post notices in Spanish and English

• All users must go through painful online tutorials

E-Verify participation requirements

• Available to employers for processing within three days of hire (typically with Form I-9 processing) – post-hire, NOT post-offer!

• May not be run on existing employees (except government contractors)

• Must be run on all new hires once you begin running employees (except government contractors)

Who may use E-Verify?

Form I-9 must be completed but List B documents must have a picture ID

E-Verify Form I-9 acceptable documents

Government contractors may verify:

 Employees (new and existing) assigned to a Federal contract only,

 Employees assigned to a covered Federal contract and new hires throughout the organization, OR

 Entire workforce (all new hires and all existing employees throughout the entire company)

Government contractor options

• Those hired before 11/06/1986 are exempt

 Those with active active confidential, secret, or top secret security clearance

• Those for whom background investigations have been completed and credentials issues pursuant to Homeland Security Presidential Directive-12

Government contractor E-Verify-exempt employees

OPTION 1:

Complete new Form I-9 for each E-Verify-non-exempt employee (same rules as the process for new employees).

Verification options for gov’t. contractor current employees

OPTION 2:

Review previously submitted Form I-9 with the employee and complete new Form I-9 or updated existing Form I-9 according to E-Verify Supplemental Guide for Federal Contractors, September 2010 (attached to handouts).

Verification options for gov’t. contractor current employees

• Information from Form I-9 entered into E-Verify system

• The possible responses:Employment

authorized SSA Tentative

Nonconfirmation (TNC)

DHS Verification in Process (may lead to TNC)

Form I-9 possible responses

If employment is authorized, you must still confirm that the name returned matches the info you provided

If there is a difference, request additional verification

DHS must respond within 3 business days

Response: Employment Authorized

Notice to Employee of Tentative Nonconfirmation provided to employee

If employee does not contest nonconfirmation, case is resolved and employee is terminated

Response: Tentative Nonconfirmation

• Eight government workdays to contact the SSA/DHS to resolve the issue.

• The employee continues to work.

• No adverse action taken against employee, including delaying start date or limiting training.

Contested Tentative Nonconfirmations

• Employee is terminated and case is closed in E-Verify.

Final Nonconfirmation

Questions?

Mike Coffey, SPHRPresidentImperative Information Group(877) 473-2287

Attached to printed slides:• DHS Form I-9 Process in a Nutshell• USCIS E-Verify Supplemental Guide for

Federal Contractors

Free webinars and recertification credit available. Visithttp://www.imperativeinfo.com for the schedule of upcoming presentations.