Understanding Form I-9 & What You Should

Transcription

1 Understanding Form I-9 & What You Should Know To Be In Compliance Presenter: Marcos Gemoets Law Office of Marcos Gemoets, P.C. Of Counsel - Escamilla, Poneck, & Cruz

2 Why Does Fo orm I-9 Exist? The Immigration Reform and Control Act (IRCA) U.S. Congress enacts legis slation to control the unlawful employment of foreign workers in the United States. Requires U.S. employers to verify employment authorization of ALL wor rkers and forbids the employment of unauthor rized workers.

3 Who Can Work Le egally in the U.S.? 1. U.S. Citizens 2. Non-citizen Nationals of the U.S. 3. Refugees / Asylees 4. Lawful Permanent Resi idents 5. Foreign Worker W/ Em mployment Authorization

4 Form I-9

5 Form I-9 Section 1: For Employee Review and Completion

6 Form I-9 Section 1: For Employee Review and Completion Section 2: For Employer Completion

7 Form I-9 Section 1: For Employee: Review and Completion Section 2: For Employer: Completion Section 3: For Employer: Update & Reverification

8 Form I-9 Employees hired after 11/06/1986 must complete Form I-9 by date of hire. Social Security # is optional on the paper form, but required via E-Verify. Employer should verify that all information is completed.

9 Form I-9 Within Three (3) Business Days Employee: (1) Identity Document (2) Employment Authorization Employer: (1) Examine Documents (2) Sign Form I-9 (3) Return Documents

10 Form I-9 Document Review Standard of Review is Reasonableness Document Must Be Original What to Look For? (1) Is it Genuine? (2) Does it Relate to Employee? Receipt May be Used ONLY For Temporary Proof of Lost, Stolen, or Destroyed Document

11 Form I-9 REVERIFY (1) Employment Authorization Has Expired (2) Employee is Rehired Within Three Years of Original Form I-9 (3) Employee Changes Name

12 Retention of Form I-9 U.S. Employers must reta ain Form I-9 for every employee on its payroll l. How Long Does Form I- -9 Have to Be Retained? 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. Retain Form I-9 to the lat ter date.

13 INSPEC CTION U.S. Department of Hom meland Security U.S. Department of Justic ce U.S. Department of Labo or * Notice of Inspection * Three (3) Days Prior to Inspection Store Form I-9 W/ Documents Copied

14 Employer Sanctions Civil Fines Criminal Penalties Emp ployment Violations Debarment from Governm ment Contracts Civil Penalties Employe ee Discrimination

15 Employer Civil Violations First Offense Hire or Employ With Knowledge of No Employment Authorization Failing to Comply W/ Form I-9 Requirements Min Max $ 375 / Worker $ 110 / Form I-9 Document Fraud $ 375 / Worker Document Abuse $ 110 / Violation Unlawful Discrimination $ 375 / Violation $ 3,200 / Worker $ 1,100 / Form I-9 $ 3,200 / Worker $ 1,100 / Violation $ 3,200 / Violation Sanctions Second Offense Third Offense Min Max Min Max $ 3,200 / Worker $ 6,500 / Worker $ 4,300 / Worker $ 16,000 Worker $ 110 / Form I-9 $ 1,110 / Form I-9 $ 110 / Form I-9 $ 1,100 / Form I-9 $ 3,200 / Worker $ 110 / Violation $ 3,200 / Violation $ 6,500 / Worker $ 1,100 / Violation $ 6,500 / Violation $ 3,200 / Worker $110 / Violation $ 4,300 / Violation $ 6,500 / Worker $1,100 / Violation $ 16,000 Violation

16 Employer Criminal Violations First Offense Engaging in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens. Up to $3,000 for each unauthorized alien. Up to 6 months in prison for the entire pattern or practice. Sanctions Second Offense Third Offense Up to $3,000 for each unauthorized alien. Up to $3,000 for each unauthorized alien. Up to 6 months in prison for the entire pattern or practice. Up to 6 months in prison for the entire pattern or practice.

17 What is Docum ument Abuse? An employer may not ask for more or different documents than listed on the Form I-9 An employer may not re efuse to accept reasonably valid docum ments presented An employer can not sp pecify a document that must be presented. An employee may submit any of the documents li isted.

18 Employer Sanctions The INA anti-discrimination n provision prohibits treating employees differently in the employment eligibility verification and reverific cation processes based on citizenship status s or national origin. An employer can not authori ize the use of documents by U.S. citizens or Lawful Pe ermanent Residents and not permit the same docum ments by other workers.

19 Correc ctions Correct Form I-9 or Prepare New Fo orm I-9 Correction: Draw Line Through Incorrect Info ormation. Initial Date Prepare New Form: Missing Form I-9 Immediately Prepare. Do Not Backdate.

20 E-Verify / Form I-9 Mandatory Form I-9 Social Security # Not Required Photo Not Required on some List B Documents Must Be Used to Reverify Expired Employment Authorization E-Verify Voluntary for Most U.S. Employers Requires Social Security # to compare w/ E-verify database ID w/ Photo Required for comparison w/ E-verify May Not Be Used to Reverify Expired Employment Authorization

21 Proposed Form I-9

22 Proposed Form I-9 Do Not Use Proposed Form I-9 Comment Period: Septe tember 21, 2012 Minor Changes to Form mat of Document

23 Notice of In ntent to Fine Constructive Knowledg ge Totality of the circumstances matters. Is corrective action take en? Was the employment of suspect employees interrupted? Organization should do ocument all efforts taken in response to No Matc ch Letters.

24 Employer Sanctions Since April 2009, the U.S. Immigration & Customs Enforcement (ICE) increased criminal prosecution of employe er violators. Employers with large workforces that fail to comply with Form I-9 equirements face fines of thousands, or even mill lions. Abercrombie & Fitch No unauthorized worker. $ 1million fine for paper rwork violation. (Sept 2010)

25 Marcos Gemoets Law Office of Marcos Gemoets TEL: (281) migrationmg.com ov/files/form/i-9.pdf