nuts and bolts: filling in the new i-9 form

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MINI-WEBINAR March 23 &26The Nuts and Bolts of Filling in the NEW I-9 Form

Eliot Norman, Team LeaderWorksite Enforcement and Corporate Immigration Compliance Team Williams Mullen [email protected] updates:http://tinyurl.com/immupdateswww.williamsmullen.com/immigration


Today’s Agenda

� What's "New" and What's "Old" with the April 3, 2009 Form

� No More Expired Documents?

� What's Changed on the List of Acceptable A, B, C Doc uments

� What About Receipts? Re-verifications? Handling H-1B Transfers/Extensions?

� Who Pays the Fine if the Employee Fills in Section 1 Wrong?

� Bonus: Friendly Quiz on the Hard to Handle Documen ts � Q&A at the end� PLEASE PUT YOUR PHONES ON MUTE UNTIL THE Q&A� Questions,Answers, Comments welcome during the

presentation by WEBEX chat

�

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PART I: CORPORATE IMMIGRATION COMPLIANCE RISKS

Eliot NormanWorksite Enforcement and Corporate Immigration Compliance Team Williams Mullen [email protected] updates:http://tinyurl.com/immupdateswww.williamsmullen.com/immigration


Civil Penalties Against Employers for Immigration Violations

Compliance Risks: What’s at Stake

� Substantive Violations: Range from $375 to $3200 for First Offense:

� Paperwork Violations: Range from $110 to $1100 for each I-9 Form

� Substantive fines: assessed per unauthorized employe e

� Risk Factors: 50 to 1000 hires per year; 500 to 15, 000 I-9 records

� Section 1 of the I-9 is then used to register on E-V erify

� E-Verify Fines for continuing to employ worker whose paperwork does not match DHS and SSAdministration records: $500 to $1000: $500 for failing to timely notify employee of non-conformance based upon information initially filled in on Section 1 of the I-9:

� As Federal Contractors: Penalties include debarmen t:

� Costs of responding to Audit, Administrative Subpoe na,

� VALUE OF DESK AUDIT OF SAMPLE OF 25 FORMS: determine scope of problems in advance of government inspections, audits


Where are you Vulnerable?

� Sloppy I-9 Records = problems: Loss of Affirmative “ Good Faith”Defenses; loss of control. Unprepared for E-Verify.

� Sooner you get the I-9s right the better, with E-Ve rify coming into play May 21st:

� We will leave for another MinWebinar:

� Compliance with 9-10 Million SSN No-Match Letters:

� Yes, 10 million No-Match Letters will go out in 2009 to workers and their employers stating that the SSN for that employee does not match his name or is not a valid SSN. That employee may work for you. AND

� Dealing with E-Verify effectively after May 21 st and setting up internal controls to avoid government fines and federal contractproblems created by you or your subcontractors


“Best Practices” and “Safe Harbors”


Part II: The New I-9 Form and List of Acceptable Documents


NEW I-9 FORM

BEST COPY THAT GOVERNMENT WILL PRINTIN ADVANCE OF APRIL 3, 2009


NEW I-9 FORM Effective April 3, 2009

Section 1 : Employee fills in but Employer Pays Fine if its not Correct or Complete: Data Used For E-Verify

Translator/Preparer Certificate

Section 2 : HR: Fills in Info From Originals of List AOR List B and C Documents

HR Certification: “UNDER PENALTY OF PERJURY”

Section 3 : HR Re-VerifiesWork Authorization, again under “penalty of perjury”


(TITLE OF DOCUMENT GOES HERE) Department of Homeland Security OMB No. 1615-0047; Expires 03/31/07

U.S. Citizenship and Immigration Services Employment 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 an individual 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 #

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): □ A citizen or national of the United States ☒ A Lawful Permanent Resident (Alien #) A □ An alien authorized to work until / / (Alien # or Admission #)

Employee’s Signature

Date (month/day/year)

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)


/ /

Section 2. Employer Review and Verification. To be completed and signed by employer. Examine one document from List A OR examine one document from List B and one from List C, as listed on the reverse 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 - lattest, under penalty or 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)


/ / 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) I have examined appear to be genuine and to relate to the individual. Signature of Employer or Authorized Representative


/ / NOTE: This is the 1991 edition of the Form I-9 that has been rebranded with a

current printing date to reflect the recent transition from the INS to DHS and its components.

Form I-9 (Rev. 05/31/05)Y Page 2

1399043v1

OLD I-9 FORM 6/5/2007 to April 3, 2009

Section 1 : Employee fills in but Employer Pays Fine if its not Correct or Complete: Data Used For E-Verify

Translator/Preparer Certificate

Section 2 : HR: Fills in Info From Originals of List AOR List B and C Documents

HR Certification: “UNDER PENALTY OF PERJURY”

Section 3 : HR Re-VerifiesWork Authorization, again under “penalty of perjury”


EMPHASIS in Announcement of New I-9: Getting Section 1 Right


NEW LIST OFACCEPTABLEDOCUMENTS

EMPHASIS: “ ALL DOCUMENTS MUST BE UNEXPIRED”

and

Be more careful inAccepting List A Documents that show Identity and WorkEligibility


OLDLIST OF ACCEPTABLEDOCUMENTS


Part III: New I-9: Practical Impact on List A


NEW LIST A , April 3, 2009


OLD LIST A


EAD (Employment Authorization Card)

EXPIRATION DATE


Focus of New I-9: Section 1


Foreign Passport: India

With Valid Photo ID


I-94 Expiration Date:July 15, 2010

I-797 Approval Notice forH-1B

I-94


xxxxxxxxxxxxxxxxxxxxxxxxx

Section 2: HR recognizestemporarily employed; Fills In List A with double combination of ForeignPassport and I-94 Card

Section1: Employee completes data with # and Date. Determines how Section 2to be completed by HR.

I-9 Done “Right”

TO DO: COME UP WITH SPREADSHEET REMINDERTO RE-VERIFY Section 3July 15, 2010


NEW LIST A , April 3, 2009

BIGFOCUS


Part III: Impact of New I-9 Rules on List B Documents

� Practical Impact: Still the “old TSA at the airport routine”

� Can’t do it by proxy and can’t work with copies of t he documents

� List B is going to get narrower and narrower for U.S . employees

� E-Verify is not going to let you rely on List B docu ments unless they have a Photo

� USCIS is not going to let you rely on List B unless documents unexpired

� What if documents don’t have an expiration date?

Answer: treat them as if unexpired .


5. Military I.D. or Draft Record?

6. Military DependentID Card

7. U.S. Coast Guard ID9. Canadian Drivers

License

MY FAVORITE: <18 yrs. old12. Day-Care orNursery School Record


Part IV: Practical Impact of New I-9 on List C Documents

� No Material Changes in List C Documents

� BUT, new authority in Section 1 to insist on having employee present the documents showing basis for saying “authorized” to work [only] until [insert date]”

� SS Card: no restrictive endorsements: don’t accept

� Birth Certificate: must be certified

� What if Document doesn’t have an expiration date?

Answer: treat it as if it is UNEXPIRED.


NEW LIST C: Adds also Certificate ofReport of Birth issued by Department of State


“VALID FOR WORK ONLY WITH DHS AUTHORIZATION”

UNEXPIRED DRIVER’S LICENSE


List C: Restricted SS Card� Don’t take it for List C if it says: not valid for e mployment;

valid for employment only with DHS/INS authorization.

� Can make employee return with one with no restrictio n on it if he wants to use it for List C

� Typical Scenarios causing headaches for HR:

� Scenario #1: Newly naturalized U.S. citizen; but can ’t use naturalization certificate under List A.(Natz. Certificate abolished as List A Document in 2005)

� No longer has Green Card. Has old SS Card when came as student with restriction on it: “Valid for Employment only with INS authorization”. He is telling you he is a U.S. Citizen in Section 1 but his SS Card conflicts with it. [If he is U.S. citizen , why does he need USCIS/DHS authorization to work?.He is not an alien anymore]. Go back and get a new one: or in the meantime, will need U.S. Passport (unexpired)


List C: Restricted SS Card

� Scenario #2: Another Headache for HR

� H-1B employee comes in, gives you kitchen sink in documents

� Lets you Sort it out

� Don’t go the easy way: Take the Driver’s License and Social Security Card? Why?

� Section 1: he tells you he is authorized only to wor k for temporary period of time

� Can require him to give you proof of that

� Use List A


Foreign Passport: India

With Valid Photo ID


“VALID FOR WORK ONLY WITH DHS AUTHORIZATION”

UNEXPIRED DRIVER’S LICENSE




I-94


Section 1: Not Completebut employee is saying:I only have temporary workpermit by checking boxX=“An alien authorized towork until”

Section 2HR Uses Drivers Lic & SS Card

I-9 “Done Wrong”

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxx

xxxxxxxxx


xxxxxxxxxxxxxxxxxxxxxxxxx

Section 2: HR recognizestemporarily employed; Fills In List A with double combination of ForeignPassport and I-94 Card

Section1: Employee completes data with # and Date. Determines how Section 2to be completed by HR.

I-9 Done “Right”

TO DO: COME UP WITH SPREADSHEET REMINDERTO RE-VERIFY Section 3July 15, 2010




I-94


Part V: Advanced I-9 Documents� Documents that may not be New List A, B or C but whi ch establish work

authorization

� Affirmed by USCIS in FAQ, most recently over problem s with E-Verify involving these situations:

� H-1B extensions and transfers : Can Work for 240 day s based upon Receipt Notice or FEDEX receipt notice showing new H-1B extension petition timely filed: Use combination of Foreign Passport and Receipt in List A;� Make sure you re-verify H-1Bs at 240 days

� Should instruct to come in with approval of H-1B (us ually 2-4 months) as soon as it is received

� EADs for TPS (Temporary Protected Status) Central Am ericans: check regulations as they can usually continue working with automatic extension by regulations of Work Cards (I-688). But be careful: latest El Salvadoran extensions require proof of timely registration for extension and presentation of new Card on March 9, 2009

� No exceptions per USCIS for spouses of L-1 and E-1/E -2 visa holders: must present EAD card to be able to work.


Part VI: The “Nuts and Bolts” in Properly Completing the New I-9 Form

� Now that we have gone over “Acceptable Documents” lets review the Form Itself

� It has not changed substantively in any big way

� The emphasis has changed: get Section 1 “Done Right” and you stay out of trouble in Section 2

� Section 3: be careful, watch restrictions on its us e.

� Trend: Moving to electronic I-9s and E-Verify which relies on Section 1 Data


Impact of New I-9 on Completing Section 1

� New list A tells you: burden on employer to make sure employee gets it right and complete

� Substantive violations: Corporation pays the fines

� SS # optional but won’t work when move to E-Verify

� You will rely on the data for E-Verify

� You will rely on its accuracy to complete Section 2


Section 2: Avoiding Compliance Risks


Impact of New I-9 on Completing Section 2

� All Important Section 2 Only person who sees the Documents can fill in Section 2

� Timing: 3 business Day Rule

� All Important Certification of Date of Hire

� Complete Section 2 from the Originals and Copy what you saw:

� Compare status checked in Section 1 with Documents handed you for Section 2


Section 3:What is it?


Impact of New I-9in Completing Section 3

� Can’t use Section 3 if Employee filled in the old I -9 Form that expired April 3, 2009: Do a new I-9.

� Be careful with Receipts

� Don’t over re-verify

� Suppose Documents expire after employee is hired: No need to Re-Verify

� Green Cards: Never Re-Verify

� Distinguish Green Cards from the I-551 Stamp in the Passport


EAD (Employment Authorization Card)

EXPIRATION DATE


Part VI: Conclusion1. Sample, Scorecard, Train, Audit and Certify: and then go

back 6 months later and do it again

2. When Box 4 (temporary employment eligibility is chec ked in the new Section 1, “Stop, Look, and Listen”

3. Get the List of Available documents out as early as possible in the application process: New and old U.S. Citizens in particular are going to have problems with the new I-9;

4. Go to Electronic I-9s: internal check against fillin g in Section 1 incompletely and proceeding to Section 2; and making sure Section 2 squares with info on Section 1.

5. Scan existing I-9s and Documents presented and shred the paper ones.

6. Purge your I-9 Data using the 3yr/1yr Rule.


Conclusion and Upcoming Events

� Critical to get I-9 Records in Order and Keep them that way with E-Verify and SSN “No Match” rolling out in 2009

� All linked to that Section 1

� To help:

� Upcoming “Nuts and Bolts” MiniWebinars:� Going electronic with your I-9s: Shred the Paper; ge t rid of the

Errors.

� Handling SSN “No Matches”: 10 million letters being sent 2009

� E-Verify: “Nuts and Bolts:”


14 E-Verify States in Red


Questions? Questions?

Eliot Norman , Immigration andWorksite Enforcement Team804-783-6482 [email protected] updates:http://tinyurl.com/immupdateswww.williamsmullen.com/immigration