the form i 9 compliance and e verify

The Form I-9 and E-VerifyEmployment Eligibility Verification

Immigrants First, PLLCAn Immigration & Human Rights Law Firm

Immigrants First, PLLC - All Rights Reserved

The Current Climate"Just a small fine or a slap on the wrist is not a deterrent...we see more robust criminal cases...the prospect of 10 years in prison carries much sharper teeth than just a small fine....We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom."

"....individuals who have profited from hiring illegal aliens....we're going after their houses, their Mercedes and any money that they have, as well."

-Julie Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement (Previous Director of ICE)



Remember: Equal Opportunity and Fairness

Should an employer just stay away from anyone who appears to be an immigrant?

An employer may not discriminate against foreign nationals who are eligible to work in their candidate selection process.

An employer may not knowingly hire or continue to employ a person who is not authorized to work in the US. Knowingly = “Actual Knowledge” or “Constructive Knowledge” (should have known).



Just how do employers check if an employee is eligible to work in the US?

Since 1986, all U.S. employers have had the obligation to document that they have verified the work eligibility of all new workers with few exceptions. The government form that employers are required to fill out is the Employment Eligibility Verification or Form I-9.

The I-9 form is an immigration enforcement document that shows that as an employer, you have reviewed your employee’s identification and can attest that they are authorized to work in the US.

In 1997, E-Verify was launched as aninternet-based system that compares information from an employee’s Form I-9 to data from DHS and SSA records to confirm employment eligibility.





In Virginia…While participation in E-Verify is voluntary for most businesses, some companies may be required by state law or federal regulation (such as government contractors) to use E-Verify. The trend is for states to continue pass laws to add to the list of employers for whom E-Verify is required.

In 2010, legislation was passed in Virginia to require that beginning December 1, 2012, all agencies of the Commonwealth of VA, must enroll and use the E-Verify program for each newly hired employee. Then in March of this year, Gov. McDonnell moved the start of the requirement to June 1, 2011.

Also, current Virginia law makes it a class 1 misdemeanor for a business to hire unauthorized workers. Although a recent Supreme Court ruling makes this provision unenforceable.


Immigrants First, PLLCAn Immigration & Human Rights Law Firm The Argument Against

Mandatory E-VerifyFormer congressman, Bruce Morrison, speaking on behalf of the Society for Human Resource Management (SHRM), noted that while E-Verify has provided a fairly reliable option for employers wishing to participate in a pilot program, it remains inadequate for the task of verifying all new hires. In particular, he offered the following criticisms of the E-Verify system:• The SSA database is flawed, with a 4.1% error rate in SS records• The error rate will hamper the ability of legal workers to obtain jobs• E-Verify remains a paper-based system as employers must still complete

the I-9 form and analyze one or more of 25 documents establishing identity and/or work authorization

• E-Verify is unable to detect many forms of document fraud and identity theft

He advocated the need for a federal solution to employment eligibility verification, noting that dozens of states have already enacted a confusing and complex patchwork of E-Verify legislation – a problem particularly acute for multi-state businesses.



The Impact of E-Verify

Some feel that mandatory E-Verify is likely to harm the economy and U.S. workers.

Immigrants in Virginia: Virginia is home to 805,742 immigrants in 2009.

Mandatory E-Verirfy without Immigration Reform will result in lost tax revenue for Virginia: Households headed by unauthorized immigrants in Virginia paid $165.3 million in state and local taxes in 2010, according to estimates prepared by the Institute for Taxation and Economic Policy.

Unemployment may likely INCREASE as a result of E-Verify: Surveys of E-Verify have found that between 0.8% and 2.3% of workers received an erroneous response from E-Verify, meaning that they had to either correct their records or lose their jobs. Applying those error rates to VA, we estimate that between 33,655 and 96,788 US Citizens and legal workers iin VA would either have to correct their records or lose their jobs.

E-Verify will burden Virginia businesses: Currently, only 7,770 buinesses in VA are enrolled in E-Verity, which amounts to less then 5% of all Virginia businesses. Mandadory E-Verify would imean a 1,900% increase in a short period of time.

Fines for Non-Compliance

Investigators have considerable discretion in assessing fines and will look at factors like the size of the company, the seriousness of the violations, whether the employer was trying to comply in good faith and the pattern of past violations.

It has been estimated that two-thirds of the average company’s I-9s have at least one error or is missing.

Fine per Occurance Description of Error

$100 - $1,100 Improper completion, retention, storage or if not available for inspection

$250 - $11,000 Knowingly hiring an unauthorized worker

$3,000 – 6-months in prison Showing a pattern of hiring unauthorized workers



Who must complete the I-9?

• Required for everyone hired after November 6, 1986.

• No exception for temporary or part-time employees, unless employed by a third-party (e.g., temp agency).

• Who is not required to complete the I-9:– Independent Contractors or Sub-contractors– Domestic workers in a private home – Note: Employment

must be sporadic, irregular or intermittent



When is the I-9 form completed?

• Employees must complete Section 1 on or before the first day of employment (first day of paid work).

• Employer must complete Section 2 within three days of the first day of employment. Employee must present only original unexpired documents as required by the form.

Do not use white-out. If a mistake occurs during completion of the I-9 form, cross out the error, initial and date it, inserting the correct information. Note: Only the person responsible for the

section with the error may correct that section of the document.



I-9 Section 1: Employee Information and Verification

• Section 1 must be completed by the employee on or before the start date.

• Employee certifies that he/she is a:– U.S. citizen (Box 1), or– Lawful Permanent Resident (Box 2), or – An alien authorized to work for a specific period of time (Box 3).

• Employee signs and dates.



I-9 Form: Section 1Only the employee may complete, sign and date Section 1.

Corrections to this section may only be made by the employee, initialed and dated.



Section 2: Employer Review and Verification

• Section 2 completed by the employer within three business days of the first day of employment.

• Employer examines one document from list A, or one from list B and one document from and one document from list C.

• Employer attestation, signature, date.

• Employee must be physically present and employer must review originial documents.



Section 2: Continued

• Employees must present an original document or documents that establish identity and employment eligibility within three days of starting their job. Employees can choose which document(s) they want to present from the lists of acceptable documents:

– List A establishes both identity and employment eligibility

– List B establishes only identity

– List C establishes only employment eligibility



List of Acceptable Documents for the I-9

Either, choose one from List A

Or, one each from List B and List C




• Section 2 completed by the employer within three business days of the first day of employment.

• Employer examines one document from list A, or one from list B and one document from and one document from list C.

• Employer attestation, signature, date.

• Employee must be physically present and employer must review originial documents.



I-9 Form: Section 2Immigrants First, PLLCAn Immigration & Human Rights Law Firm


• Employer must complete Section 3 of I-9 to reverify work authorization before expiration of date in Section 1.

• Do not need to reverify:– US Citizens or Nationals (Section 1, Box 1).– Lawful Permanent Residents (Section 1, Box 2) – unless employee

shows I-551 stamp and passport or re-entry permit.

• Completing Section 3: record document title, record new expiration date, sign and date.

I-9 Section 3: ReverificationImmigrants First, PLLCAn Immigration & Human Rights Law Firm



• Only need to reverify documents from List A or List C.

• Unless Section 3 is already filled in, not necessary to complete new I-9 to reverify, but if you do, do it for all reverified employees.

• If you’ve already filled out Section 3 for a prior reverification, fill out a new I-9 and keep it with the original.

• Tickler for expiration date 180-days in advance. Remind employee that a new employment doc will be required.



I-9 Form: Section 3Immigrants First, PLLCAn Immigration & Human Rights Law Firm


I-9 Form: Retention and Storage

• Must have an I-9 for everyone currently employed (except those hired before November 7, 1986 and employed continuously).

• Must keep I-9 on file for three years after date of hire OR one year after date of termination, whichever is later.

• Separate I-9s into 3 groups:1. I-9s for people currently employed2. I-9s for people who need reverification3. I-9s for those terminated

I-9s must be stored separately from all

other personnel records!!!



The E-Verify SystemWhat is E-verify?• In 1997, E-verify (initially known as ‘basic pilot program’)

was launched. E-verify is an on-line system employers can use to instantly look-up and validate an employee’s identity and work eligibility. This system must be used by all government contractors and suppliers - - of which in the D.C. metro area there are quite a few.

• In addition, private employers are increasingly voluntarily using the E-verify system to check an employee’s work eligibility and some states are passing laws to make more employers subject to its mandatory usage.



Conclusion

• Immigration and Customs Enforcement (ICE) is working hard to identify companies where there may be illegal hiring practices.

• When an audit is called for, the business has only three-days to prepare.– It is recommended that a company will perform an

internal audit of their I-9s each year to be sure they are present, complete and correct.



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