USCIS Form I-9: Purpose, Completion

and Audit

C O N S U L T I N G │ B R O K E R A G E │ A D M I N I S T R A T I O N │ C O M M U N I C A T I O N S │ C O M P L I A N C E │ E M P L O Y E E A D V O C A C Y

Presented by: Cindy WagnerDirector, HR Professional Services

About the Webinar

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About Our Presenter

Cindy possesses 30+ years of progressive and diverse human resources, compliance, and leadership experience that spans from start-up to established organizations. She has extensive hands-on experience leading HR initiatives including policy design, performance management, recruiting, compliance reporting, compensation, benefits administration, HRIS implementation, HR workflow development, leadership development and training, safety management, mergers and acquisitions, and payroll administration.

Cindy’s employment history includes positions in both the private and public sectors supporting employers with employee populations of 100 – 7,500 employees. Her vast level of expertise includes seven recent years as a Vice President of Human Resources and Payroll Services in a leadership and operations role. Cindy is focused on providing human resources strategic based solutions and compliance support to our clients. She is active in the HR business community and is a member of SHRM, CHRA, CC SHRM and the Hunt Valley Business Forum.

Cindy Wagner, Director of HR Services

Introduction

In compliance with the Immigration Reform and Control Act of 1986, all United States employers must verify the identity and employment eligibility of all new employees (both citizen and non-citizen) hired after November 6, 1986. This compliance requirement is satisfied as employers have newly hired employees complete the United States Citizenship and Immigration Services (USCIS) Form I-9 at the time of hire.

The Federal law imposes penalties for violations when employers are found to be in non-compliance. Most employers include this critical function as a part of their new hire orientation process and hiring manager or Human Resources (HR) Representatives are responsible for oversight of completion of the required Form(s) I-9. In addition, it’s paramount the management and HR representatives are properly trained for completion and audit of the Form(s) I-9.

This presentation provides that knowledge.

• NEW! Department of Homeland Security Announcement - New Hires During COVID-19 Lockdown and Quarantine Protocols

• How many employers comply?

• How many employers regularly monitor compliance?

• What are the deadlines for completing the Form I-9?

• How should employers/employees complete the Form I-9?

• What happens if the employee does not provide the needed documentation timely?

• Can employers obtain too much documentation?

• How should employers’ handle remote hires?

• What should an employer do in the case of an ICE Audit?

Agenda

Form I-9 Requirements On March 20, 2020, the Department of Homeland Security announced that effective

immediately:

• The physical presence requirement of the Employment Eligibility Verification, Form

I-9, has been temporarily suspended for employers and workplaces that are operating

remotely due to COVID-19 related precautions.

• Employers with employees taking physical proximity precautions due to COVID-19

(and operating remotely) are not required to review the employee’s identity and

employment authorization documents in the employee’s physical presence.

• The physical presence requirement that was temporarily suspended

mandated that employers, or an authorized representative, physically

examine, in the employee’s physical presence, the unexpired

document(s) the employee presents from the Lists of Acceptable

Documents to complete the Documents fields in Form I-9’s

Section 2.

COVID-19 – Flexibility in Mandatory In-Person

Signatures

Form I-9 -Section 2 Documents Must Be Inspected Remotely

• Employers must still inspect the Section 2 documents but may do so remotely, i.e., fax, email, via video link.

• Employers must also obtain, inspect and retain copies of the documents they inspect, within three (3) business days required to complete Section 2. Employers are also directed to:

• Enter “COVID-19” as the reason for the physical inspection delay in the additional information field of Section 2 once physical inspection takes place after normal operations resume; and

• Add “documents physically examined,” with the date of inspection to either the additional information field of Section 2 or to Section 3 (as appropriate) once the documents have been physically inspected.

• Employers may implement remote document inspections until May 19, 2020 (“up to 60 days from the date of the announcement”) or within three (3) business days after the termination of the National Emergency, whichever comes first.IMPORTANT – Employers who implement remote onboarding and telework policies must provide documentation for each employee. This burden rests solely with the employers!

COVID-19 – Flexibility in Mandatory In-Person

Signatures

In-Person Verification Required After Normal Operations Resume

Once Normal Operations Resume:

• All Employees onboarded using remote verification must report to their employer within three (3) business days for in-person verification of identify with the employment eligibility documentation they originally presented for their Form I-9,

• All employees who were onboarded using remote verification must report to their employer within three (3) business days for in-person verification of identity and employment eligibility documentation they presented for their Form I-9, and

• The employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field or to section 3, as appropriate.

Any audit of subsequent Forms I-9 would use the “in-person completed date” as a starting point for these employees only.

COVID-19 – Flexibility in Mandatory In-Person

Signatures

Extension on Inspections

Effective March 19, 2020, any employers who were served Notice ofInspections (NOI) by U.S. Department of Homeland Security (DHS) duringthe month of March 2020 and have not already responded, will be grantedan automatic extension for Sixty (60) days from the effective date. At theend of the Sixty (60) day extension period, DHS will determine if anadditional extension will be granted.

Employers are required to monitor the DHS and U.S. Immigration andCustoms Enforcement (ICE) Websites for additional updates regarding whenthe extensions will be terminated, and normal operations will resume.

COVID-19 – Flexibility in Mandatory In-Person

Signatures

Statutes and Regulations

Form I-9 Federal Statutes and Regulations

Form I-9 Employment Eligibility Verification - requirements come out of the Immigration Reform and Control Act of 1986 (IRCA).

IRCA prohibits:

• Employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment.

• Employers from continuing to employ an individual knowing that he or she is unauthorized for employment.

• Employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.

The Primary Statutes Concerning Form I-9 Processes are:

• The Immigration Reform and Control Act of 1986 (IRCA), November 6, 1986

• Immigration Act of 1990, November 29, 1990

• Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), September 30, 1996

• Code of Federal Regulations

Additional References can be Found:

• Title 8 – Aliens and Nationality

• Title 28 – Judicial Administration

Statutes and Regulations

Purpose of Form I-9

• Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

• All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete the form.

https://www.uscis.gov/i-9-central/complete-and-correct-form-i-9

USCIS Form I-9 Compliance – Critical to the Hiring Process!

Purpose of Form I-9

On the Form I-9, the Employee:

• Must attest to his or her employment authorization,

• Must present his or her employer with acceptable documents evidencing identity and employment authorization,

• Must examine the employment eligibility and identity document(s) presented to determine whether the document(s) reasonably appear to be genuine and to relate to the employee, and

• The Employer must record the document information on the

Form I-9.

Form I-9 - Sections 1, 2 & 3

Form I-9 is Comprised of 3 Sections:

Section 1, Employee Information and Attestation –

This section must be completed by the new employee no later than the date the employee begins employment. It may also be completed prior to the beginning of employment, after the individual has accepted an employment offer.

Form I-9 - Sections 1, 2 & 3

Section 2, Employer or Authorized Representative –Review and Verification

This section must be completed by the company’s representative before or within three business days of the employee’s first day of employment.

Question #1

a. Yes

b. No

Do I need to complete a Form I-9 for Independent Contractors?

Section 3 Reverification and Rehires:• Employers or their authorized representatives should complete Section 3 when reverifying that an

employee is authorized to work.

• When rehiring an employee within three (3) years of the date Form I-9 was originally completed, employers have the option to complete a new Form I-9 or complete Section 3. When completing Section 3 in either a reverification or rehire situation, if the employee’s name has changed, employers must record the name change in Block A.

• For employees who provide an employment authorization expiration date in Section 1, employers must reverify employment authorization on or before the date provided.

Form I-9 - Sections 1, 2 & 3

Section 1 - Employee Information & Attestation

Please note:• The employee may use a translator or preparer to complete Section 1 of the form. However, the form

must be signed by the employee, and the translator or preparer must complete the last portion of Section 1.

• Social Security numbers are not required from new employees (unless the employer uses E-Verify).

• When an employee enters an employment authorization expiration date in Section 1, the employer is required to reverify employment authorization for the employee in Section 3 on or before the expiration date provided by the employee.

Question #2

a. Yes

b. No

Can I terminate an employee who fails to produce the required documents within three (3) business days of his/her start date?

Section 2 - Employer or Authorized

Representative Review and Verification

Please note:

• The new employee must present original and unexpired document(s) that prove his or her identity and employment authorization. Certified copies of birth certificates are acceptable.

• Documents from List A show both identity and employment authorization.

• Documents from List B show identity only (employers participating in E-Verify can accept List B documents only with a photograph).

• Documents from List C show employment authorization only.

Please see the list of acceptable documents included with the Form I-9:

• Employers must accept any document(s) from the Lists of Acceptable Documents presented by the new employee that reasonably appear on their face to be genuine and to relate to the person. Employers may not specify which document(s) an employee should present.

• Employers must examine the documents presented and fully complete Section 2 by recording the title, issuing authority, number and expiration date (if any) of the document(s).

Section 2 - Employer or Authorized

Representative Review and Verification

Retaining Copies of Form I-9 Documentation - Employer Options

Employers have a choice:

• Make and retain copies of all documentation provided, and attach the copies to the Form I-9.

• Do not make copies of documentation provided.

• Participation in E-Verify and photo matching: When the employee presents a document used as part of photo matching (currently the U.S. passport or passport card; Permanent Resident Card, Form I-551; or the Employment Authorization Document, Form I-766), employers must retain a photocopy of the document the employee presents and attach it to the Form I-9.

Section 2 - Employer or Authorized

Representative Review and Verification

Question #3

a. Yes

b. No

Do the United States Citizenship and Immigration Services (USCIS) guidelines require employers to photocopy an employee’s I-9 documentation?

Section 3 - Reverification and Rehires

Please note:

• Reverifying means updating the employee’s work authorization; this is done only when an expiration date is entered in Section 1. Reverification must be done on or before the expiration date recorded in Section 1.

• The employee must present a document that shows either an extension of the initial employment authorization or new employment authorization. This can be any document from Lists A or C.

• Employees cannot work beyond the date their employment authorization expires without reverifying their authorization to work in the U.S.

• U.S. citizens, permanent residents and noncitizen nationals never need reverification.

• Employers should not reverify an Alien Registration Receipt Card/Permanent Resident Card (Form I-551) or a List B document that has expired.

Section 3 - Reverification and Rehires

• If the employee is rehired within three (3) years of the date the Form I-9 was originally completed, employers have a choice of reverifying the rehire with the use of Section 3 or by completing a new Form I-9 for the rehire.

• If a new version of Form I-9 is available, employers must complete the new version of Form I-9 for rehires.

Section 3 - Reverification and Rehires

List of Acceptable

Documents

Form I-9 Requirements for Remote Workers

No “Free” Passes!

Employers must retain Form I-9s for Remote Workers.

Two Options:

1. Designate an authorized representative to inspect the documents for remote employees.

2. Use a Notary Public.

Engage a Trusted Agent!

What is E-Verify?

An Internet-based system that compares

information entered by an employer from an

employee’s Form I-9, Employment Eligibility

Verification, to records available to the U.S.

Department of Homeland Security and the

Social Security Administration to confirm

employment eligibility.

• Free!

• Fast – Provides Results in 3 to 5 Seconds

• Currently has 870,000 Registered

Employers

• Includes more than 2.4 Million Hiring Sites

• Federal Government Estimates 1,500+

Companies are Joining Every Week!

• Currently Not Required, but that may

change in the future!

Employers must retain an employee’s completed Form I-9 for as long as the individual works for the employer. Once the individual’s employment has terminated, the employer must determine how long after termination the Form I-9 must be retained, which is either three years after the date of hire, or one year after the date employment is terminated, whichever is later.

Retention Requirements

Question #4

a. Department of Homeland Security (DHS)

b. Department of Labor (DOL)

c. Department of Justice (DOJ)

d. All of the above

e. None of the above

Where do I send completed Form I-9s?

Knowing Hire/Continuing to Employ Fine Schedule (Effective for penalties assessed after April 2019 whose associated violations occurred after November 2, 2015).

Knowing Hire and Continuing to Employ Violations

Standard Fine Amount

First Tier$573 - $4,586

Second Tier$4,586 - $11,463

Third Tier$6,878 - $22,972

0% – 9% $573 $4,586 $6,878

10% – 19% $1,192 $6,614 $8,942

20% – 29% $1,834 $7,566 $11,693

30% – 39% $2,522 $8,551 $14,444

40% – 49% $3,210 $9,514 $17,333

50% or more $3,898 $10,489 $20,130

Penalties

Penalties

Substantive/Uncorrected Technical Fine Schedule (Effective for penalties assessed after April 5, 2019 whose associated violations occurred after November 2, 2015).

Substantive Verification Violations

Standard Fine Amount

1st Offense$230 - $2,292

2nd Offense$230 - $2,292

3rd Offense +$230 - $2,292

0% – 9% $230 $1,146 $2,292

10% – 19% $573 $1,375 $2,292

20% – 29% $917 $1,604 $2,292

30% – 39% $1,261 $1,834 $2,292

40% – 49% $1,604 $2,063 $2,292

50% or more $1,948 $2,292 $2,292

Question #5

a. My employer is subject to penalties

b. Since good faith is exercised, government will most likely not apply penalties unless they determine actual knowledge was known of unauthorized status of the employee

c. My employer looks good in stripes!

What happens if I accurately complete and retain a Form I-9 and the Department of Homeland Security (DHS) discovers that my employee is not actually authorized to work in the United States?

How to Prepare for an ICE Audit?

Seven Basic Steps to Prepare for an ICE Audit:

1. Don’t Panic!

2. Gather employee data and Form I-9s.

3. Search forms for errors and omissions.

4. Ensure all forms are compliant and up to date with current requirements.

5. Note any missing forms or information, including any errors.

6. Discard any expired Form I-9s.

7. Address any issues.

Summary

Wrapping It Up …1. Form I-9’s required by Federal law

2. Penalties for non-compliance

• Failure to produce a Form I-9 penalties range from $230 - $2,292 per violation

• Knowingly hiring and continuing to employ penalties range from $573 to $20,130 per violation

3. Don’t panic!

4. Self-Audit and be prepared in case of an ICE audit!!

5. Remember COVID-19 temporary relief and future requirements.

6. Lastly, From All of Us at AssuredPartners...Please Be Safe and Be Well!

Questions

If you have any further questions about the webinar slides, credits, etc., please feel free to contact us at:

AP Benefit Advisors, LLC

(800) 451-8519 | www.apbenefitadvisors.com

Download Slides – www.apbenefitadvisors.com/webinars/

Resources:

USCIS Customer Support – (888) 464-4218

www.dhs.gov/e-verify

www.uscis.gov/I-9Central