The New Form I-9: What You Need to Know to Avoid the Pitfalls and - - PowerPoint PPT Presentation
The New Form I-9: What You Need to Know to Avoid the Pitfalls and Stay Compliant David C. Whitlock, Esq. Miller & Martin PLLC Immigration Practice Group 404.962.6102 dwhitlock@millermartin.com Download slides and handouts for todays
What You Need to Know to Avoid the Pitfalls and Stay Compliant
David C. Whitlock, Esq.
Miller & Martin PLLC
Immigration Practice Group 404.962.6102 dwhitlock@millermartin.com
Download slides and handouts for today’s presentation at http://downloads.agc.org/product/WB202
field personnel;
verify employment eligibility;
E-Verify; and Establish best practices for reducing risks and correcting errors when using the new Form I-9.
– April 19, 2006 IFCO raid – May 9, 2006 Fischer Homes – Swift Meat Co. raids – DHS Safe Harbor Rule – Agriprocessors raid – Federal Contractor rule
– More I-9 Inspections – 652 Notices of Inspection Sent
– 1000 Notices of Inspection Sent
– 180 Notices of Inspection Sent
– 1000 Notices of Inspection Sent in mid-February 2011
– George’s Processing Settles for $450k – Shipley Do-Nut Fined $250k and forfeits $1.33 Million – Pilgrim’s Pride Settles for $4.5 Million – Koch Foods pays over $500k for Administrative Violations
I-9 paperwork complaint for $1,050,000.
Michigan.
upon problems with electronic software system.
infrastructure
possibility for Comprehensive Immigration Reform – Any reform statute will include dramatic increases in enforcement
who is not authorized to work
verifying identity and work authorization
knows or should know the person is not authorized to work
any specific document or combination of documents for I-9 purposes
more or different documents than are minimally required for the employment verification process
tendered by an employee that reasonably appear to be genuine
– $375 to $3,200 First Violation – $3,200 to $6,500 Second Violation – $4,300 to $16,000 Third & Other Violations
Criminal Sanctions Likely After First Violation
in penalty of $110 to $1,100 for each individual
penalty range encourages compliance, so higher penalties are likely
fine for harboring, smuggling, concealing, or transporting illegal aliens for financial gain
– Employment is always viewed as “financial gain”
conspiracy to harbor, smuggle, conceal, or transport
– At least once per year
– Can’t fix late forms – Can’t fix status for terminated
Files
– Sensitive Information – Time to Retrieve Forms
employees’ I-9 forms
– Purge forms when retention test is met
Notice period
give to ICE/DOL
number, business card
speaking to employees
them politely to stop
setting out what happened
away from employees and other business records
at the time employment begins
by the end of the third business day
– Before employment begins if employment will be three days or less
date of the foreign national’s work authorization
work commences
Social Security number, and status
1 information under penalty of perjury
necessary
Section 2 immediately after employee completes Section 1
examining the documents presented by the employee and recording the document numbers and expiration dates in the appropriate columns in Section 2
persons re-hired within three years of completing a prior I-9 form
I-9 form by confirming that the employment eligibility document originally presented remains valid
the re-hire date in Section 3, Item B of the form
new hire date
document expires, employer must reverify the employee’s right to work prior to the expiration of the current work authorization document
document presented; ignore any expiration date in Section 1
reverification is almost always construed as knowingly continuing the employment of an alien who lacks authorization to work
examining a new work authorization document and completing Section 3, Item C of the form
and expiration date (if any) should be recorded in Section 3 and the employer should sign and date Section 3 of the form
for identity documents, U.S. passports, or Permanent Resident cards
authorization documents that expire
document at least 120 days prior to document expiration
reminders
unable to produce new document before expiration
tickler file
present a required document may present a receipt for a replacement document
whichever is later
use a receipt for a work permit renewal
must present the actual document
– We believe this could constitute document abuse discrimination – Better practice is to let the employee produce any document from the lists
employee permitted but not required
– Copies must be kept with I-9 form – Form must still be properly completed
problems identified during a periodic self- audit or in advance of a government audit
photocopies – instead, get it right the first time
years from the date work commences and for one year from the date employment terminates
throw out the form
form for every single current employee hired after November 6, 1986
employees’ personnel files, so that ICE/DOL does not obtain access to information in personnel files in the event of an audit
forms separate from terminated employee forms
pull them quickly in the event of an audit and easier to correct
certainly begin with an I-9 audit by ICE.
www.ssa.gov/employer/ssnvs.htm
mandatory.
David C. Whitlock, Esq.
Miller & Martin PLLC
Immigration Practice Group
404.962.6102
dwhitlock@millermartin.com