Immigration Update - Insulation Contractors Association of America

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Immigration Update - Insulation Contractors Association of America
I-9, E-VERIFY, AND IMMIGRATION
COMPLIANCE STRATEGIES
PRESENTED BY
JULIE A. PACE
THE CAVANAGH LAW FIRM PA
[email protected]
602-322-4046
FOR:
INSULATION CONTRACTORS
ASSOCIATION OF AMERICA (ICAA)
OCTOBER 4, 2013
©2013 The Cavanagh Law Firm PA
This document provides information of a general nature regarding legislative or other developments. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or
future developments may affect the subjects addressed in this document.
THE CAVANAGH LAW FIRM PA
THE VIAD TOWER
1850 NORTH CENTRAL – SUITE 2400
PHOENIX, AZ 85004
WWW.CAVANAGHLAW.COM
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JULIE A. PACE
JULIE A. PACE is a partner in the Phoenix office of The Cavanagh Law Firm PA. Ms.
Pace’s practice is concentrated in representing companies in immigration compliance,
commercial litigation, construction, and employment law, with particular emphasis in the
defense of sexual harassment, employment discrimination, wrongful discharge suits, EEOC and
ACRD charges, matters involving OSHA, ICE, OFCCP, DOL, NLRB, wage and hour laws,
conducting sexual harassment investigations, and providing training to managers and employees.
She also counsels employers on non-compete contracts, confidentiality agreements, employee
discipline, drug testing, accommodation of disabled individuals, safety policies, and other human
resource policies and procedures.
Ms. Pace has been described by Arizona Business Magazine as the "go to" lawyer in
Arizona for businesses on immigration issues. She has handled hundreds of I-9 audits, addresses
E-Verify issues, and has provided I-9 and immigration compliance training for thousands of
supervisors.
She has been interviewed and quoted on immigration and employment law in news media
across the nation, including ABA Journal, Forbes, Business Week, The New York Times, CNN,
NPR, Associated Press, USA Today, L.A. Times, CBS News, Fox News, and Arizona
publications.
For over the past two decades, Ms. Pace has regularly represented companies in OSHA
proceedings. She has been working on fall protection issues since the fall protection standard
went into effect in 1995. She has handled hundreds of OSHA matters and numerous fatalities in
the workplace.
Ms. Pace is a frequent speaker and author on a variety of employment topics. She is a
contributing author to Legal Briefs on Immigration Reform from 25 of the Top Legal Minds in
the Country. She is a Co-Editor-in-Chief of three books on immigration and employment law -Employment Verification: An Employer's Guide to Immigration, Form I-9 and E-Verify;
Arizona Human Resources Manual; Model Policies and Forms for Arizona Employers, all
published by American Chamber of Commerce Resources.
Ms. Pace is a recipient of Arizona Business Magazine’s 2008 Centers of Influence
Award, which recognizes the ten leading attorneys, accountants, and bankers in Arizona. Ms.
Pace is also a Fellow of the Litigation Counsel of America. She has served as Judge Pro Tem for
the Arizona Court of Appeals and is a former judicial law clerk to the Honorable Joe W.
Contreras of the Arizona State Court of Appeals. Ms. Pace is a fourth generation Arizonan.
She received her J.D. degree, cum laude, from Arizona State University, where she was
also Symposium and Articles Editor of the Arizona State Law Journal. She received her B.S.
degree in Business Administration, magna cum laude, from Arizona State University. Ms. Pace
can be reached at 602.322.4046 or [email protected]
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DAVID A. SELDEN
DAVID A. SELDEN is a partner with The Cavanagh Law Firm in Phoenix, Arizona.
Mr. Selden received his J.D. degree, magna cum laude, from Georgetown University Law
Center, where he was also an editor of The Tax Lawyer. He received his B.A. and M.A. degrees
from George Washington University in Washington, D.C.
Mr. Selden’s practice is concentrated in representing management in a wide variety of
employment law matters, including immigration compliance, discrimination, wrongful discharge,
workplace torts, OSHA, EEOC, ACRD, DOL, NLRB, ICE, OSC, DOT, collective bargaining,
and other employment litigation.
He is one of the attorneys who filed the lawsuit challenging the constitutionality of
Arizona's 2007 Employer Sanctions Immigration Law, which is currently pending before the
U.S. Supreme Court, and he is representing the employer in defending the first contested
prosecution under the law.
Mr. Selden has been interviewed by and quoted in numerous publications on immigration
and employment law, including the Wall Street Journal, Business Week, The New York Times,
CNN, MSNBC, Fox News, Associated Press, Chicago Tribune, Denver Post, and numerous
Arizona publications.
He has served as the Chair or Co-Chair of the Employment Committee of the Arizona
Chamber of Commerce and Industry for 20 years, representing the interests of Arizona
employers before the Arizona Legislature on immigration and employment issues. He drafted
the 1996 Arizona Employment Protection Act and the 1997 Constructive Discharge Law.
He has been Co-Editor-in-Chief of three books on immigration and employment law –
Employment Verification: An Employer's Guide to Immigration, Form I-9 and E-Verify;
Arizona Human Resources Manual; and Model Policies and Forms for Arizona Employers, all
published by American Chamber of Commerce Resources. He served on the Editorial Review
Board of the Arizona Labor Letter and the Board of Editors of the Arizona Employment Law
Handbook, which is published by the State Bar of Arizona. He is a contributing author to Legal
Briefs on Immigration Reform from 25 of the Top Legal Minds in the Country.
He has been listed in The Best Lawyers in America for more than 15 years and has been
listed in every edition of Chambers USA: America’s Leading Lawyers for Business. Mr. Selden
is also a Fellow of the Litigation Counsel of America.
Mr. Selden also serves on the Board of Directors of the Phoenix Symphony and Arizona
Chamber of Commerce and Industry and has served as General Counsel to both the Arizona
Chamber and the Phoenix Symphony. He has been an Adjunct Professor of Law at Phoenix
School of Law, teaching courses in Employment Law and Employment Discrimination Law. He
is a frequent speaker before professional groups.
Before practicing law in Arizona, Mr. Selden worked in Washington, D.C. from 1971
through 1982 as a legislative and administrative assistant to several members of Congress.
Mr. Selden may be reached at (602) 322-4009 or [email protected]
website is http://www.cavanaghlaw.com.
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The
HEIDI NUNN-GILMAN
HEIDI NUNN-GILMAN is a partner in the Phoenix office of The Cavanagh Law Firm
PA. Ms Nunn-Gilman’s practice focuses on employment litigation and human resource matters.
She has experience in working with both public and private employers. She advises clients on
matters relating to labor and employment law, including I-9 and immigration compliance
strategies, E-Verify, ICE and worksite enforcement, Title VII, FLSA, FMLA, ADA, leaves, drug
and alcohol, NLRB, wrongful discharge, non-competition and confidentiality agreements, wage
and hour laws for both public and private employers, employee handbooks, and executive
agreements. Ms. Nunn-Gilman is a frequent speaker on a number of employment law topics,
including I-9 and immigration compliance strategies and wage and hour compliance. Ms. NunnGilman received her J.D., summa cum laude, from Lewis & Clark Law School in Portland,
Oregon in 2005, where she graduated first in her class, was on the Trustee’s Fellowship Scholar
List, and was a member of the Cornelius Honor Society. While at Lewis & Clark, she served as
Editor in Chief of the Lewis & Clark Law Review. Ms. Nunn-Gilman earned an M.A. degree in
Philosophy, Teaching Ethics Emphasis, summa cum laude, from the University of Montana in
2000. She earned a B.A. degree in political science, history and philosophy, summa cum laude,
from Ouachita Baptist University in 1998. Ms. Nunn-Gilman can be reached at (602) 322-4080
or [email protected]
MEAGHAN E. GALLAGHER
MEAGHAN E. GALLAGHER is an attorney with The Cavanagh Law Firm in Phoenix,
Arizona. Her practice focuses on employment and labor law with emphasis on management in
labor and employment matters, including responding to EEOC charges, employer counseling,
handling I-9 and E-Verify immigration compliance audits and investigations, employment
litigation and unemployment hearings. Ms. Gallagher received her J.D. from Syracuse
University College of Law, where she graduated magna cum laude in 2012. While at Syracuse,
Ms. Gallagher was a leading advocate on the National Trial Team and competed in four national
trial competitions. She was active in the school's public interest network and criminal defense
program, received the Trial Advocacy Excellence award, and was inducted into the Justinian
Honorary Society. Ms. Gallagher received her B.A. with honors from the University of Arizona
in 2009. Ms. Gallagher can be reached at (602) 322-4029 or [email protected]
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Labor, Employment & Immigration
Immigration Compliance Practice
Our attorneys regularly assist employers regarding compliance and investigations
involving U.S. immigration laws, including the following:
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»
I-9 training, I-9 audits;
»
Procedures and responses to no-match letters from the SSA;
»
Advice concerning various database verification programs including: E-Verify
Program, formerly known as the Basic Pilot Program; the SSA’s Social
Security Number Verification Service, and “IMAGE” program;
»
Strategies to respond to law enforcement, government inspections, inquiries
about identity, I-9s, subpoenas or raids;
»
Providing guidance regarding compliance with state immigration laws and
regulations;
»
Contract considerations regarding immigration compliance;
»
Strategies to respond and defend against national origin discrimination,
unlawful hiring, IRCA violations, civil penalties, and criminal charges;
»
Strategies to deal with internal investigations based on identity issues;
»
Strategies to respond to customer or third party complaints about an
employee’s legal status;
»
Strategies to respond to employee absences from work to attend rallies or
boycotts and other actions potentially protected as concerted activity under
the NLRB;
»
Strategies to implement when using leased or contingent workforce
companies.
Labor, Employment & Immigration Group
Occupational Safety and Health Act Practice
The firm represents clients on a national basis in defending OSHA citations. We
have been involved in representing trade associations in shaping federal OSHA
standards, particularly in the construction and manufacturing industries. We have
defended clients in numerous fatality cases and have prevailed at hearings in
defeating all citations arising out of fatality cases. Our lawyers help companies
promote safety through drafting and implementing safety programs, policies and
manuals and providing safety training.
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Drafting safety policies and handbook for employers to help prevent
violations and to improve worker safety;
»
Counseling employers regarding specific measures to comply with OSHA
standards;
»
Advising employers regarding procedures to adopt in anticipation and
preparation for a potential OSHA inspection;
»
Counseling employers regarding how to conduct themselves during OSHA
inspections, and handling communications with OSHA following an
inspection;
»
Contesting OSHA citations, including representing clients in OSHA
settlement proceedings, OSHA administrative hearings, and court challenges
to OSHA citations and penalties;
»
Influencing the adoption of new OSHA standards, including negotiating with
federal and state OSHA officials regarding adoption or revision of OSHA
standards or approving variances to OSHA standards;
»
Assisting with collateral civil litigation; and
»
Handling the special circumstances that arise in fatality matters, including
media relations, employee counseling, and government recommendations that
the matter should proceed as a criminal prosecution.
Labor, Employment & Immigration Group
The Labor, Employment
& Immigration Group is
a national practice that
The types of matters that are handled regularly on behalf of clients include:
»
Representing employers in collective bargaining negotiations, interest
arbitration, private and AAA labor arbitration, NLRA and state labor law
compliance advice, labor implications of mergers, acquisitions and asset
purchases, strike prevention and control, union campaigns, union-free training
of management and supervisors, and unfair labor practice proceedings before
the NLRB and state labor boards;
»
Employment discrimination advice and defense of claims on grounds of
protected class membership such as age, race, ethnicity, national origin,
disability, religion, sexual orientation, sexual harassment, pregnancy, gender,
Equal Pay Act claims;
»
Preparation and defense of affirmative action plans under Executive Order
11246 and other federal and state laws, including advice on implementation of
monitoring processes; plan analyses and drafting; and advice, counseling, and
litigation over OFCCP audits;
»
ERISA and other employee benefits advice and litigation, including
administrative claims appeals; breach of fiduciary duty claims; litigation of
benefit claims and interference with protected rights; ERISA preemption; and
plan design counseling for litigation avoidance and defense;
»
Defense of class action and collective action cases brought against employers,
benefit plans, and benefit plan fiduciaries;
»
Defense of at-will employment, wrongful discharge, and employment tort
claims;
»
Design and implementation of corporate wide HR and labor strategies and
initiatives;
»
Preparation of, and advice and litigation concerning, employment agreements,
executive compensation programs, restrictive covenants and trade secret
agreements, handbook and policies, employment discipline and terminations;
leaves of absences;
»
Advice and litigation on behalf of public employers such as cities, states,
school districts, authorities, and municipalities in traditional labor and
employment matters, as well as under specialized labor laws regarding police,
fire, and other personnel (e.g., Heart and Lung Act and Civil Service Laws);
provides advice and
handles litigation on
behalf of clients in the
private and public
sectors in the areas of
labor-management
relations, employment,
and ERISA.
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Training of managers and employees on topics such as: anti-harassment, antidiscrimination, diversity; EEO compliance, ADA, FMLA, chronic
absenteeism, managing the difficult employee, health and safety compliance;
hiring and interviewing, wage and hour compliance, counseling, discipline and
terminations, and leaves of absences;
»
Conduct investigations;
»
Review and legal audit of personnel policies, manuals and employment forms,
formulation of personnel policies such as FMLA, sexual harassment and drug
and alcohol abuse and testing, privacy rights, and ADA compliance;
»
Advice concerning OSHA and state health and safety laws, including
compliance and self-audits; governmental investigations and citations;
negotiations with OSHA; and litigation before the OSHRC and the courts;
»
Wage and hour investigations and FLSA advice;
»
Immigration law, including employer sanctions and I-9 compliance, social
security mismatch letters, employment-based immigrant petitions,
nonimmigrant visa petitions for intra-company transfers and specialty
workers, labor certifications, investor visas, family-based immigration services,
and litigation before administrative and judicial courts on immigration
matters;
»
Public and private school law matters;
»
Reduction in force design, counseling, and litigation, including WARN
compliance, early exit programs, severance pay, and effective use of releases;
and
»
Representation of professional athletes and professional sport franchises.
TABLE OF CONTENTS
THE IMPORTANCE OF FULLY COMPLETING THE FORM I-9 ...... 1 I. II. IMMIGRATION REFORM AND CONTROL ACT OF 1986 AND
IMMIGRATION ACT OF 1990. ..................................................................................... 1 A. Introduction. ............................................................................................................ 1 B. Prohibited Employer Conduct................................................................................. 1 C. Defense. .................................................................................................................. 1 D. Verification Procedure: I-9 Form............................................................................ 2 E. Facts from Real I-9 Cases. ...................................................................................... 3 CHANGES IN FORM I-9 VERIFICATION PROCEDURE UNDER THE
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT
RESPONSIBILITY ACT OF 1996. ................................................................................ 5 A. Increased Enforcement............................................................................................ 5 B. New I-9 Form and Acceptable Documents. ............................................................ 5 C. Good Faith Defense. ............................................................................................... 5 III. ENFORCEMENT AND CONTESTING FINES. .......................................................... 6 IV. PENALTIES. ..................................................................................................................... 6 V. A. For Employing Unauthorized Aliens: ..................................................................... 6 B. For Accepting Fraudulent Documents: ................................................................... 7 C. For Violations of the Verification Procedures. ....................................................... 7 D. For Joint Violations of the Verification Process and the Prohibition on
Hiring Unauthorized Aliens. ................................................................................... 7 E. For Document Fraud. .............................................................................................. 7 F. For Harboring Illegal Aliens. .................................................................................. 7 G. For Pattern and Practice Violations. ....................................................................... 8 ICE INVESTIGATIONS.................................................................................................. 8 A. Notice of Investigation. ........................................................................................... 8 B. Maintenance of I-9 Forms. ...................................................................................... 8 C. Copying I-9 Forms Before Investigator Arrives. .................................................... 8 D. ICE Review and Response. ..................................................................................... 8 E. Employees Identified as Reverification or Counterfeit Documents. ...................... 8 F. Employee Surveys/Raids. ....................................................................................... 9 G. Notice of Violation. .............................................................................................. 10 1932420.1
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Julie A. Pace
602.322.4046
[email protected]
H. VI. Examples of Real Life ICE Enforcement Actions. ............................................... 10 ANTI-DISCRIMINATION UNDER THE ACT. ......................................................... 11 A. Prohibited Conduct. .............................................................................................. 11 B. The Discrimination Risk: Some Examples. .......................................................... 11 C. Enforcement. ......................................................................................................... 11 D. Penalties. ............................................................................................................... 12 B. Investigation By Office of Special Counsel of The Civil Rights Division
of Department Of Justice. ..................................................................................... 13 E. Facts From Real Discrimination Cases. ................................................................ 14 F. Special Issue Facing Employers Dealing With Defense Articles:
Intersection Between Itar And Anti-Discrimination Statutes ............................... 16 VI. NEW 2-PAGE I-9 FORM ISSUED MARCH 8, 2013 ................................................. 17 VII. REHIRES......................................................................................................................... 19 VIII. I-9 FORMS AND PRE-AUDIT STEPS TO PREVENT LIABILITY. ...................... 19 IX. RECOMMENDATIONS REGARDING I-9 FORMS. ............................................... 23 WHAT TO DO WHEN ICE COMES KNOCKING?.............................. 25 I. INTRODUCTION........................................................................................................... 25 II. NOTICE OF INSPECTION .......................................................................................... 25 III. III. NOTICE OF TECHNICAL OR PROCEDURAL FAILURES ........................... 26 IV. NOTICE OF SUSPECT DOCUMENTS ...................................................................... 27 V. NOTICE OF UNAUTHORIZED ALIENS .................................................................. 27 VI. NOTICE OF INTENT TO FINE. WHAT NOW? ...................................................... 27 A. Can We Negotiate the Amount of the Fine? ......................................................... 27 B. Can We Go to Court to Fight This? ...................................................................... 28 C. What is OCAHO? ................................................................................................. 28 STATE IMMIGRATION AND E-VERIFY LAWS ................................ 29 I. INTRODUCTION........................................................................................................... 29 II. STATES REQUIRING E-VERIFY. ............................................................................. 30 THE LEGAL ARIZONA WORKERS ACT (LAWA) ............................ 33 III. ARIZONA'S EMPLOYER SANCTIONS LAW: THE LEGAL ARIZONA
WORKERS ACT (LAWA) ............................................................................................ 33 1932420.1
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Julie A. Pace
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IV. A. Prohibition Against "Knowingly" or "Intentionally" Employing an
Unauthorized Worker............................................................................................ 34 B. Effective Date of LAWA Was January 1, 2008. .................................................. 34 C. Investigations by the State Attorney General, County Attorneys, County
Sheriffs, and Local Law Enforcement. ................................................................. 34 D. Complaints Based Solely on Race or National Origin May Not Be
Investigated. .......................................................................................................... 34 E. County Attorneys Will Prosecute Complaints That Are "Not Frivolous". ........... 34 F. Penalties for Knowingly or Intentionally Employing an Unauthorized
Worker. ................................................................................................................. 35 G. The Defense That Employers Are Not Required to Violate Other Laws. ............ 37 H. "Entrapment" Defense. ......................................................................................... 37 I. Mandatory Use of the E-Verify Program and Defenses for Employers. .............. 37 J. Voluntary Employer-Enhanced Compliance Program. ........................................ 38 K. Penalties for Paying Cash and Not Following Other Employment Laws. ............ 38 L. Extension of LAWA to Contractors’ Hiring Practices, but Exclusion of
Independent Contractor Relationship from Definition of Employee. ................... 38 M. Verification of Immigration Status for Issuance of Licenses. .............................. 39 N. E-Verify Requirement for Government Contractors and Grant Recipients.......... 39 O. Disclosure of Businesses Enrolled in E-Verify. ................................................... 40 P. Prohibition Against Knowingly Accepting Identity Of Another Person In
Hiring Employee. .................................................................................................. 40 Q. Issues and Strategies for Employers. .................................................................... 40 R. Prohibition Against MCSO Arresting Employees for “Conspiring” With
Employers to Violate LAWA. .............................................................................. 41 CONCLUSION. .............................................................................................................. 41 THE NEW ICE IMAGE PROGRAM ....................................................... 42 I. INTRODUCTION........................................................................................................... 42 II. NEW STREAMLINED IMAGE CERTIFICATION PROCESS .............................. 42 III. BENEFITS OF THE NEW IMAGE PROGRAM ....................................................... 44 THE SSA NO MATCH LETTER.............................................................. 45 I. INTRODUCTION........................................................................................................... 45 II. THE GOVERNMENT AGENCIES .............................................................................. 45 A. 1932420.1
ICE ........................................................................................................................ 45 iii
Julie A. Pace
602.322.4046
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III. X. XI. B. The OSC................................................................................................................ 45 C. The SSA ................................................................................................................ 46 D. The IRS ................................................................................................................. 46 REPORTING EMPLOYEE IDENTITY & STATUS ................................................. 46 A. The I-9 Form ......................................................................................................... 46 B. One I-9 Trap: Documentation .............................................................................. 46 C. Another I-9 Trap: Archiving ................................................................................ 47 REPORTING FEDERAL WAGES .............................................................................. 47 A. The W-2 Form....................................................................................................... 47 B. The W-4 Form....................................................................................................... 48 SSA NO MATCH LETTERS ........................................................................................ 48 A. Consequences........................................................................................................ 48 B. Dealing with No Match Letters............................................................................. 49 C. The Penalties and Waivers .................................................................................... 50 D. Conclusion ............................................................................................................ 50 E. SSA No Match Checklist ...................................................................................... 50 STRATEGIES FOR IMMIGRATION COMPLIANCE AND
PROTECTING YOUR COMPANY ......................................................... 52 I. IMPORTANCE OF ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY
WORK PRODUCT PROTECTION ............................................................................. 52 II. I-9 AND IMMIGRATION COMPLIANCE. ............................................................... 52 III. ACTIONS AND DOCUMENTATION TO BOLSTER DEFENSES TO
ALLEGED VIOLATIONS OF THE LEGAL ARIZONA WORKERS ACT. ......... 53 IV. ANTICIPATE AND DEAL WITH COMPLAINTS OR INQUIRIES
REGARDING IMMIGRATION STATUS. ................................................................. 54 V. RESPONDING TO GOVERNMENT INQUIRIES. ................................................... 55 VI. PROCEDURES FOR HR INVESTIGATIONS INTO IDENTITY ISSUES. ........... 55 VII. EMPLOYMENT POLICIES AND HIRING PAPERWORK.................................... 55 VIII. EMPLOYEE TRAINING. ............................................................................................. 56 IX. AVOIDING CHARGES OF DISCRIMINATION. ..................................................... 57 X. RECORDS RETENTION POLICIES. ......................................................................... 57 XI. USE OF LEASED EMPLOYEES, EMPLOYMENT AGENCIES, OR
OUTSOURCING WORK. ............................................................................................. 58 XII. CONTRACT CONSIDERATIONS. ............................................................................. 58 1932420.1
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Julie A. Pace
602.322.4046
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XIII. CORPORATE CONSIDERATIONS............................................................................ 60 XIV. ACTIONS GUARANTEED TO TRIGGER LIABILITY. ......................................... 62 XV. SUMMARY OF KEY RECOMMENDATIONS ......................................................... 63 APPENDIX .................................................................................................. 66 1932420.1
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Julie A. Pace
602.322.4046
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APPENDIX
Document
Page No.
The Avoiding Knowingly Triangle
67
Procedures and Processes to Respond to Government Agency Visits and Calls
Regarding Social Security No Match Inquiries (English/Spanish)
68-75
Responding to Callers Inquiring About Immigration Compliance, Threatening
to Report Company, or Expressing Negativity Towards Immigration
76-78
Memorandum to Managers and Supervisors re Immigration Compliance
(English/Spanish)
79-80
Memorandum to Managers re I-9 Employment Verification Requirements and
Anti-Harassment, Anti-Discrimination, and No Retaliation
81-82
W-9 Form (English/Spanish)
83-84
Immigration Compliance Policy and Acknowledgment Form (English/Spanish)
86-86
I-9 Form with List of Documents (English/Spanish)
87-104
Tips to Complete I-9 Form
105-109
Flowchart Regarding I-9 and E-Verify
110
Helpful Steps To Comply With Requirements of I-9 and E-Verify Program
111-119
Excerpt from DHS Handbook For Employers (M-274, pp. 41-51)
120-131
IRCA Prohibits Employment Discrimination
132
10 Steps to Avoid Immigration-Related Employment Discrimination
133
E-Verify – Employer DOs and DON’Ts
134
I-9 Reverification and Receipt of Application and Rehires
135-138
Creation and Maintenance of Personnel Files
139-144
ERROR! Electronic Employment Verification Systems: What will Happen
When Citizens Have to Ask the Government for Permission to Work?
145-147
Responding to Social Security Administration No-Match Letter
148-153
Immigrating Legally? Good Luck!
154
ACLU Know Your Rights (English/Spanish)
155-158
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Julie A. Pace
602.322.4046
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THE IMPORTANCE OF FULLY COMPLETING THE FORM I-9
BY
JULIE A. PACE
DAVID A. SELDEN
HEIDI NUNN-GILMAN
THE CAVANAGH LAW FIRM PA
I.
IMMIGRATION REFORM AND CONTROL ACT OF 1986 AND
IMMIGRATION ACT OF 1990.
A.
Introduction.
In 1986 and again in 1990, Congress vastly expanded employer responsibility for
enforcing federal immigration law by imposing substantial penalties upon employers for
knowingly hiring aliens who are not authorized to work in the United States.
Under the Immigration Reform and Control Act of 1986, 8 U.S.C. §§ 1324a, 1324b,
1324c, and the Immigration Act of 1990 (collectively, “IRCA” or the “Act”), employers must
verify that each of their employees is authorized to work in this country. IRCA, however, also
subjects employers to severe sanctions if they discriminate against current or prospective
employees on the basis of national origin or citizenship. Therefore, IRCA forces employers to
walk a fine line between verification and discrimination. Remarkably, despite the potential for
substantial liability under IRCA, the government estimates that many employers are unaware of
its provisions.
B.
Prohibited Employer Conduct.
IRCA makes it illegal for any person who employs four or more persons to:
1.
hire, continue to employ, or refer for a fee, an alien knowing that the alien is not
authorized to work in the United States;
2.
hire any person without complying with the verification procedures contained in
the Act; and
3.
discriminate against any person on the basis of national origin or citizenship
status.
An employer may not circumvent the Act’s prohibitions by using the services of
independent contractors in lieu of employees.
C.
Defense.
Generally, the only defense to a charge that an employer has hired unauthorized workers
is that the employer did not have actual or constructive knowledge of the employee’s
unauthorized status.
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Julie A. Pace
602.322.4046
[email protected]
Complying with the verification procedure contained in IRCA creates a good faith
defense to an alleged violation. Failing to comply with the verification procedure creates a
presumption that the employer had constructive knowledge that the employee is not authorized
to work in this country.
D.
Verification Procedure: I-9 Form.
The verification procedure requires employers to verify the identity and authorized status
of every employee. This process must be documented by completing an I-9 Form (“Employment
Eligibility Verification Form”) for every person the employer hires, regardless of the person’s
purported or apparent citizenship.
To complete this form, the employer must review original unexpired documents from the
employee and verify the employee’s identity and employability. In completing the I-9 Form, the
employer must list the following information about the documents presented by the employee:
1.
title,
2.
issuing authority,
3.
number, and
4.
expiration date, if any.
The employer also must state on the I-9 Form the date that employment begins. The form
must be completed after the offer of employment. While the regulations technically require the
employee to complete Section 1 of the Form I-9 on the first day of employment, the regulations
allow the employer three business days after hiring the employee to complete the I-9 Form. If an
employee properly presents a receipt for a replacement document as the employee's I-9
document for completing the initial I-9, the employer must update the I-9 Form within 90 days of
the presentation of the receipt. An employer must complete the entire I-9 form by the start of
employment for employees who will work three days or less.
Generally, if any of the documents demonstrating temporary work authorization expire
during the employment, the employer must update the I-9 Form before the temporary work
authorization expires.
Section 1 of the I-9 Form must be completed by the employee. The employee must
complete, sign, and date this section. The employee must fill out one the four boxes regarding
citizenship.
If the employee does not read English, a translator/preparer can be used to complete
Section 1. The employee still must sign his or her name, and the translator/preparer must sign the
bottom of section 1. In the event of an investigation, ICE may interview the translator/preparer.
The current I-9 Form contains a non-inclusive list of various documents that satisfy the
purposes of verifying identity and verifying eligibility to work in the United States. All
documents must be unexpired on the day they are used to complete the I-9 Form. Moreover, the
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Julie A. Pace
602.322.4046
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I-9 Form breaks down the various documents into three columns -- A, B, and C, as discussed
below.
Column A lists documents that establish both the employee’s identity and authorized
status. These include such documents as a U.S. Passport, Lawful Permanent Resident Card, and
Employment Authorization Card. Various other documents are acceptable. A complete list of
acceptable documents is contained on the reverse side of the I-9 Form in Appendix A.
If an employee cannot present a single document demonstrating both identity and
authorized status, the employer must accept two documents that together demonstrate the
employee’s identity and authorized status.
The documents demonstrating identity are listed in Column B on the I-9 Form and
include valid drivers’ licenses or voter registration cards. Documents demonstrating authorized
status are Column C documents, and include social security cards or certified birth certificates.
Many employers choose to photocopy the original documents presented by the employee
and attach the copies to the Form I-9, but they are not required to do so. As more fully discussed
below, maintaining copies of the back-up documentation may be harmful to employers if ICE
investigates your company and reviews copies of the documents reviewed by your company
personnel. Currently federal law does not require companies to photocopy documents used for
identification.
Both the employer and employee must attest to the Form I-9 under penalty of perjury.
The employee verifies that he or she is a United States citizen, a noncitizen national, a permanent
resident, or authorized to work in the United States on a temporary basis, and that he or she has
presented legitimate documents.
The employer merely verifies that it has reviewed the documents submitted by the
employee, and that the documents reasonably appear to be genuine and relate to the person
presenting them. Employers may obtain a revised M-274 Handbook for Employers dated March
2013, which is the last published guidance for employers.
Employers must maintain I-9 forms for all current employees. Employers may not
knowingly use, possess, obtain, accept or receive any forged, counterfeit, altered, or falsely made
document submitted by an employee to comply with these verification procedures.
E.
Facts from Real I-9 Cases.
Issue: Did the employer knowingly hire and employ an illegal alien?
The record reflects that:
1.
The hiring manager and the alien grew up together in Mexico.
2.
The alien had been in the hiring manager’s house in Mexico when they were
younger.
3.
The alien is currently married to the hiring manager’s cousin, a U.S. citizen.
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[email protected]
4.
The alien’s brother called the hiring manager from California, and he asked the
manager to hire the alien to work at the manager’s Arizona store. The manager
said he would hire the alien;
5.
In response to the manager’s question, the brother said the alien had appropriate
documentation.
6.
Upon arrival at the store in Phoenix, the alien presented to the hiring manager a
California driver’s license and a social security card.
7.
The alien’s last name was misspelled on the front of the social security card.
8.
The back of the social security card did not match any of the exemplars in the I-9
“Handbook for Employers” on the completion of I-9 forms.
9.
The alien resided with the hiring manager during his employment.
10.
The alien spoke poor English and testified through an interpreter.
Despite the above facts, the court found in favor of the employer. The administrative law
judge (“ALJ”) had found against the employer. The court reversed because the ALJ had based
its decision primarily on (1) the fact that the employer had offered the employee the job before
the documents were presented to the employer; and (2) that the employer had failed to compare
the reverse side of the social security card with the example in the I-9 Handbook for Employers.
There are no regulations, however, that require employers to review examples in the I-9
Handbook. The ALJ failed to base its decision on the other facts in the case, which could have
made the employer liable. USA v. Collins Foods International, Inc. D/B/A Sizzler Restaurant,
948 F.2d 549 (9th Cir. 1991).
In another case, decided shortly after the employment eligibility verification requirements
of IRCA were passed, the Court found that an employer did have knowledge based on the
following facts:
1.
The INS had conducted an I-9 audit and cited the Company for paperwork
violations that included failing to reverify work authorization when it expired but
continuing to employ the individual.
2.
The INS officers had identified several employees that it suspected were using
false green cards and provided the Company with a list of numbers which, if they
were being used at the Company, indicated that the person using them was an
unauthorized alien. The Company did not follow up on the information and
allowed the employees to continue working.
3.
The Company failed to complete a Form I-9 for some employees and continued to
employ them after the Company was cited for paperwork violations regarding the
individual and the citation identified him as “an illegal alien.”
Mester Manufacturing Company v. Immigration and Naturalization Service, 879 F.2d 561 (9th
Cir. 1989). An employer clearly must take reasonable steps to determine the status of an
employee or terminate the individual’s employment after ICE indicates that the individual is not
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602.322.4046
[email protected]
authorized to work in the United States or risk charges of “knowingly” employing an
unauthorized worker.
II.
CHANGES IN FORM I-9 VERIFICATION PROCEDURE UNDER THE
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY
ACT OF 1996.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)
changed employment verification procedures significantly. The changes were supposed to
become effective no later than September 30, 1997, but the government was not ready to
implement the new regulations and distribute new I-9 forms, so a lengthy postponement
occurred. The new Form I-9 incorporating the regulations was not issued for over a decade.
A.
Increased Enforcement.
At the time, the law increased the number of investigators by 300 in each of the three
fiscal years following its enactment. Under the Act, at least one-half of the investigators must
investigate possible employer sanctions for violations. This means at least 450 new employer
sanctions investigators were added in 1998, 1999, and 2000. The Act required at least ten
investigators to be assigned to each state.
The law also authorized the Attorney General of the United States to enter into
agreements with states or political subdivisions of the states to allow state officers to perform
functions of an immigration officer.
B.
New I-9 Form and Acceptable Documents.
The Immigration and Naturalization Service (“INS”) stated that it would develop a new
Form I-9 to comply with this law. More than ten years after the IIRIRA was passed, the INS was
renamed the United States Citizenship and Immigration Services (“USCIS”) with the
Immigration and Customs Enforcement (“ICE”) as the enforcement division. Several versions of
the I-9 form have been released in the past few years. Employers need to use the most current
Form I-9. The USCIS issued the new I-9 form and list of acceptable documents on March 8,
2013. The most recent I-9 has a date of 03/08/13 on the lower left-hand corner and an expiration
date of 03/31/2016 in the upper right-hand corner. The new I-9 released on March 8, 2013, is
two-pages, where previous versions of the Form I-9 were only one-page. Employers must
exercise care to keep both pages together (or print two-sided). The newest forms request
additional information from the employee, such as phone number and email address (optional),
and require temporary aliens with certain work authorization to list their passport numbers in
Section 1. Section 2 remains essentially the same, with the addition of a third document number
and date under Section A to accommodate work authorization that involves a foreign passport
with multiple visa designations.
C.
Good Faith Defense.
In what is known as the Sonny Bono Amendment, IIRIRA provides employers with a
new defense for paperwork violations. IIRIRA creates a good faith defense for procedural or
technical violations in completing the Form I-9.
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602.322.4046
[email protected]
Prior to IIRIRA, employers who committed “paperwork” violations, such as incomplete
I-9 forms, were subject to penalties. Under IIRIRA, employers are still subject to penalties.
However, the new law distinguishes between “substantive” and “procedural or technical”
violations. An exemption has been created for employers who commit “technical or
procedural” violations if employers made a “good faith attempt” to comply.
The exemption does not apply if ICE has discovered the violation, given the employer ten
days to cure the violation, and the employer has failed to cure the violation. Also, this exemption
does not apply if the employer has engaged in a “pattern and practice” of paperwork violations.
III.
ENFORCEMENT AND CONTESTING FINES.
Immigration and Customs Enforcement (“ICE”) is primarily responsible for enforcing the
Act, although the Department of Labor also has limited enforcement authority. ICE may assess
penalties against an employer that it concludes has violated the Act.
ICE initiates this process by serving on the employer a “Notice of Intent to Fine.” The
notice must set forth the alleged violations and proposed penalty.
Within 30 days of the notice being served by ICE, the employer may file a written
request for a hearing, which will take place before an administrative law judge. The judge’s
determination becomes final 30 days after it is served.
Within 45 days after service of the judge’s decision, an employer may petition the federal
Court of Appeals. If an employer does not comply with a final order, the United States
Department of Justice may file an enforcement action in any federal district court.
IV.
PENALTIES.
The Act provides for monetary fines on a sliding scale depending upon the number of
previous offenses by the employer. The Department of Homeland Security increased these
penalties in March 2008 to adjust for inflation.
A.
For Employing Unauthorized Aliens:
1.
For the first offense, the employer may be fined $375 to $3,200 per unauthorized
alien;
2.
For the second violation the employer may be fined $3,200 to $6,500 per
unauthorized alien;
3.
For the third and any further violations, an employer may be fined $4,300 to
$16,000 per unauthorized alien; and
4.
For pattern and practice violations, the employer may be enjoined or fined up to
$3,000 in criminal penalties for each unauthorized alien and/or imprisoned up to
six months.
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[email protected]
B.
For Accepting Fraudulent Documents:
1.
For the first offense, the employer may be fined $375 to $3,200 per fraudulent
document; and
2.
For subsequent violations the employer may be fined $3,200 to $6,500 per
fraudulent document.
C.
For Violations of the Verification Procedures.
An employer may be fined $110 to $1,100 for each violation.
D.
For Joint Violations of the Verification Process and the Prohibition on
Hiring Unauthorized Aliens.
ICE will take various factors into consideration in assessing the appropriate penalty,
including the size of the business, the employer’s good faith, the seriousness of the violation,
whether the individual was actually an unauthorized alien, and the history of violations by the
employer.
Thus far, courts have interpreted the good faith requirement as imposing a substantial
burden on the employer to demonstrate that it acted reasonably and honestly. Courts have
concluded that negligence, mistake, and ignorance of the law do not satisfy the good faith
standard. Moreover, this defense is not available to an employer who fails to complete the Form
I-9.
E.
For Document Fraud.
Penalties are no less than $275 and no more than $2,200 for the first offense and no less
than $2,200 but no more than $5,500 for subsequent offenses and possible imprisonment for no
more than 5 years for anyone who prepares, files, or assists another in preparing an application
for immigration benefits or support documentation with “knowledge or reckless disregard of the
fact that such application was falsely made or, in whole or in part, does not relate to the person
on whose benefit it was or is submitted.”
Falsely made means preparing or providing an application or document “with knowledge
or in reckless disregard of the fact that it contains a false, fictitious, or fraudulent statement or
material misrepresentation.”
F.
For Harboring Illegal Aliens.
Employers who knowingly hire ten or more illegal aliens in a 12-month period are
subject to civil penalties and imprisonment of more than 5 years if the employer had actual
knowledge that the aliens were unauthorized and the fact that the aliens were brought into the
United States illegally.
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602.322.4046
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G.
For Pattern and Practice Violations.
If an employer is found to have engaged in a “pattern or practice” of knowingly
employing unauthorized workers, the employer may be subject to criminal penalties. Criminal
sanctions may include a fine of $3,000.00 per unauthorized worker or imprisonment for six
months or both.
V.
ICE INVESTIGATIONS.
On March 1, 2003, the Homeland Security Act of 2002 transferred the functions of the
former INS from the Department of Justice to the Department of Homeland Security. What was
formerly INS is now two organizations, the United States Citizenship and Immigration Services
(“USCIS”) and U.S. Immigration and Customs Enforcement (“ICE”).
A.
Notice of Investigation.
Employers generally will receive a letter from ICE indicating that an ICE investigator
will meet with the employer no sooner than 3 days later and that the employer should have all
original I-9 forms available for the ICE investigator to review.
B.
Maintenance of I-9 Forms.
Employers are not required to maintain I-9 forms in any particular order. Employers do
not need to alphabetize the forms if the forms are not normally kept in alphabetical order.
Employers may produce the I-9 forms in the manner in which they generally maintain them.
C.
Copying I-9 Forms Before Investigator Arrives.
Employers, however, should make copies of all I-9 forms before the ICE investigator
arrives. Generally, the ICE investigator will take all the original I-9 forms. ICE does lose
documents. Also, in some cases, a company is subject to an inspection, but it may not hear from
ICE for more than two years before receiving the Notice of Intent to Fine. Furthermore, the
company is without any I-9 forms during this time period if it has not made copies of such forms.
D.
ICE Review and Response.
The ICE investigator will generally remain at your company for a very short time on this
first visit. The investigator’s goal is to pick up the documents and be as inconspicuous to your
employees as possible.
E.
Employees Identified as Reverification or Counterfeit Documents.
Generally, after a short period of time, the ICE investigator will forward a chart to the
company identifying employees with counterfeit documents or who need reverification. Upon
receipt of this chart, the company is required to reverify documents.
The company is generally precluded from discharging employees who have previously
provided counterfeit or suspect documents merely based on the individual being included on the
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602.322.4046
[email protected]
ICE investigator’s chart. The company is supposed to allow the employee to present documents
for reverification and completion of a new I-9 Form.
The company should send a notification letter to employees requiring reverification. The
letter should inform the employee that he or she must provide documents within a reasonable
time (3 days, one week, etc.) or the employee will be terminated. Technically, the employee is
not supposed to work for the employer until the reverification process has occurred. ICE
investigators, however, generally provide a reasonable time for employers to reverify documents.
Some employers suspend the employee without pay until the employee presents valid documents
or the deadline to provide such document expires and the employee is discharged if the employee
has failed to comply.
F.
Employee Surveys/Raids.
ICE investigators also may return to conduct employee surveys. Sometimes they will
bring buses to remove individuals from the workplace. Numerous investigators may arrive to
interview employees and surround the facility while the employee surveys are being conducted.
Employers should consider certain issues when ICE inspects your workplace. ICE
investigators almost always carry firearms and companies should determine the best location for
the investigators to conduct employee surveys.
Employers should seek to ensure that the employee surveys are conducted safely. In fact,
OSHA requires employers to make the workplace safe. Some circumstances could place ICE
directly at odds with OSHA’s requirement that work be performed safely, including government
investigations by ICE.
Safety issues, therefore, should be adequately addressed with the ICE investigator prior to
the start of the inspection. If the ICE investigator requests the employer to call all employees to
a specific location for a meeting, the employer should be cautious to ensure that if employees try
to escape during the meeting they are not exposed to unnecessary injury. For example, if the
company calls a meeting but places all employees within a locked, fenced yard that contains
razor wire or barbed wire across the top of the fence, there is a high risk that employees may be
hurt if they try to escape. It may be better to have ICE investigators conduct their employee
surveys at disperse job sites, if possible.
Another issue for employers to address is the media and helicopters. ICE sometimes
conducts high profile raids, and the media shows up to obtain coverage of the raid. The company
should consult with ICE ahead of time and request that ICE not contact the media. The media,
however, does listen to police scanners. Furthermore, the media thrives on tips provided by
various individuals and entities. Trade secrets should be protected prior to a raid if the company
suspects the media may arrive during the raid.
Employers also may want to designate an appropriate staging area for the ICE
investigators and their vehicles, including buses, as well as the media. Employers will need to
consider an area or two for interviews, and a holding area for individuals who ICE will be
removing from the job site.
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602.322.4046
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G.
Notice of Violation.
After an investigation is complete, it may take some time for an employer to learn
whether it will be fined by ICE. A Notice of Violation may be issued. Most matters are resolved
through a negotiation and settlement process.
H.
Examples of Real Life ICE Enforcement Actions.
The Department of Homeland Security on April 19, 2006 conducted a raid on IFCO
Systems North America, Inc. (IFCO), the largest pallet services company in the U.S.
(headquartered in Houston). The government arrested seven current and former managers of
IFCO pursuant to criminal complaints issued in a New York federal court. All seven managers
are charged with conspiring to transport, harbor, encourage and induce undocumented persons to
reside in the U.S. for commercial advantage and private financial gain, in violation of the
immigration laws. The conspiracy charge carries a penalty of up to 10 years in prison and a fine
of up to $250,000 for each alien with respect to whom the violation takes place. Two other
IFCO employees were arrested on criminal charges relating to fraudulent documents.
In addition to the criminal arrests, ICE agents conducted “consent” searches or executed
criminal search warrants at more than 40 IFCO plants and related locations in 26 states that
resulted in the apprehension of approximately 1,187 unauthorized IFCO employees. The consent
searches and search warrants were conducted at locations in Alabama, Arizona, Arkansas,
California, Colorado, Florida, Georgia, Illinois, Indiana, Louisiana, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, new Jersey, North Carolina, Ohio, Oklahoma, Oregon,
Pennsylvania, Tennessee, Texas, South Carolina, Virginia and Utah.
The government’s investigation of IFCO began over a year before the raids, and the
government alleged that:
1.
IFCO officials transported illegal aliens to and from work; paid rent for the
housing of illegal alien employees; and deducted money from the aliens’ monthly
paycheck to cover these expenses.
2.
It was common for IFCO to hire workers who lacked Social Security cards or who
produced bogus identification cards.
3.
IFCO hired an informant for ICE; reimbursed the informant for obtaining
fraudulent identity documents for other unauthorized employees; used the
informant to recruit other illegal workers; and advised the person and other
unauthorized employees on how to avoid law enforcement detection.
4.
Approximately 53.4 percent of Social Security numbers contained on IFCO’s
payroll of roughly 5,400 workers during 2005 were either invalid, did not match
the true name registered with the Social Security Administration for that number,
or belonged to children or deceased persons.
5.
The Social Security Administration sent at least 13 written notifications to IFCO
about such discrepancies on its payroll records in 2004 and 2005.
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602.322.4046
[email protected]
VI.
ANTI-DISCRIMINATION UNDER THE ACT.
A.
Prohibited Conduct.
IRCA outlaws discrimination on the basis of national origin or citizenship status (other
than unauthorized status). Discrimination on the basis of national origin is also prohibited by the
Civil Rights Act of 1964 (“Title VII”).
While Title VII applies only to businesses that have fifteen or more employees, IRCA’s
prohibitions apply to employers of four or more employees.
Employers also may not retaliate against employees who have filed a charge of
discrimination under the Act.
Under IRCA, employers commit an unfair immigration-related employment practice if
they asked for more or different documents in the employment verification process than those
required by the verification provisions. Under IIRIRA, there is a new standard for
discrimination. Under IIRIRA, an employer will commit an unfair immigration-related
employment practice only if the employee proves the employer intended to discriminate.
B.
The Discrimination Risk: Some Examples.
1.
An employee presents an apparently genuine green card for Section 2 verification
purposes. Later, the HR manager is notified that the social security number the
employee provided for payroll records is incorrect. The HR manager decides to
require the employee to complete another I-9.
2.
The employer undergoes an ICE investigation that finds the hiring of
undocumented workers and paperwork violations. The employer then implements
a policy requiring all non-citizen workers to produce documents issued by the
USCIS to show work authorization.
3.
The employer routinely asks all new hires to bring green cards and social security
cards to the job site. The employer does this to determine whether Section 1 of the
I-9 is properly completed. No one is denied employment if the requested
documents are not produced.
C.
Enforcement.
An ICE representative or any person who believes an employer has engaged in
discrimination may file an unfair immigration-related employment practice charge with the
Special Counsel for Immigration-Related Unfair Employment Practices within the Department of
Justice. The charge must be filed within 180 days after the alleged unfair employment practice.
Moreover, the Special Counsel may initiate an investigation without a charge being filed.
The Special Counsel is required to investigate each charge and has the right of reasonable
access to evidence in the possession or control of the employer. The Special Counsel will
provide the employer notice of the charge within ten (10) days after receiving the charge.
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602.322.4046
[email protected]
Within 120 days after receiving the charge, the Special Counsel will determine whether
to bring a complaint against the employer. If the Special Counsel does not to bring a complaint
within 120 days, the claimant may do so within 90 days after being notified by the Special
Counsel that it is not filing a complaint, provided the charge alleges knowing violations or a
pattern and practice of violations. The Special Counsel, however, retains authority to continue
its investigation or bring a complaint during that 90-day period.
Any complaint will be brought before an administrative law judge. The employer has a
right to answer the complaint and to present evidence to the judge, who then issues an order. The
judge may impose any of the penalties listed below.
In addition, applicants or employees of an employer with 15 or more employees can
bring charges of discrimination under Title VII or many State civil rights laws to the EEOC.
They cannot file a charge with both the OSC and the EEOC.
D.
Penalties.
Penalties for discrimination on the basis of national origin or citizenship status include a
broad range of non-monetary, monetary, and other relief.
Non-monetary remedies that might be imposed include an order compelling the employer
to:
1.
Maintain various records regarding applicants;
2.
Hire the individual discriminated against (with or without back pay);
3.
Conform to the Act;
4.
Educate employees about their rights and/or post notices regarding employee
rights under the Act; and
5.
Remove disciplinary notices in an employee’s personnel file.
Monetary liability under the anti-discrimination provisions of the Act includes:
1.
Possible back pay for up to two years before the charge was filed;
2.
For a first offense, the employer may be required to pay a civil penalty of $375 to
$3,200 for each individual discriminated against;
3.
For the second violation the employer may be required to pay a civil penalty of
$3,200 to $6,500 for each individual discriminated against;
4.
For the third and any further violations, the employer may be required to pay a
civil penalty of $4,300 to $16,000 for each individual discriminated against;
5.
For asking for more or different documents than required by the Act, an employer
may be fined not less than $110 nor more than $1,100 for each individual
discriminated against.
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602.322.4046
[email protected]
B.
Investigation By Office of Special Counsel of The Civil Rights Division of
Department Of Justice.
Under IRCA, employers may not discriminate on the basis of citizenship or national
origin. It is important that employers do not target individuals, such as Latinos, or ask for
additional documents when completing the I-9 Form. Employers may not specify the type of
document that an employee presents for purposes of completing the I-9 Form. The employee has
the choice of the types of documents to present to the employer. An employer may not ask an
employee to show identification or complete the I-9 Form until after the person is hired.
An individual may file a charge of discrimination with the Office of Special Counsel of
the Civil Rights Division of the Department of Justice (“OSC”). For example, in one case an
employee of a company filed a charge of discrimination because the employer did not accept a
document for purposes of identification that had the individual’s name misspelled on the
document. The document was the only document presented for purposes of completing the I-9
Form and was a document from List A. The company asked the employee to correct the
misspelling. Legacy refused to reissue an identification card with the appropriate spelling of the
person’s name. The individual filed a charge of discrimination with the OSC.
Companies want to be cautious in the manner in which they reject documents presented
for the completion of I-9 Forms. An employer is merely required to properly complete the I-9
Form and to look at actual documents to determine if they are genuine and reasonably relate to
the individual presenting them. The OSC has expressed concern about employers being too
diligent in the review of documents presented for identification. Employers may want to
evaluate their practices to ensure that employees who are reviewing I-9 Forms and documents
are not being overzealous in searching for counterfeit documents. Employers want to be
cautious that they are not singling out certain groups of individuals.
ICE has held educational seminars that include teaching employers to identify counterfeit
documents, which may have taught employers to become overzealous in their review of
documents presented for work authorization or identity purposes. This situation has resulted in
contradictory information arising between the ICE enforcement offices and the OSC in
Washington, D.C. Employers should evaluate their practices to ensure that they do not violate
the anti-discrimination statutes. Overzealousness in reviewing documents is an area in which the
OSC is extremely sensitive and is looking for violations.
We have recently seen an increase in charges filed with the OSC. For example, we have
already seen a discrimination charge filed with the OSC based on allegations that the employer
failed to properly follow E-Verify procedures and abide by the requirements and limitations of
the program. OSC officials in some states where E-Verify use is the highest have reported a
dramatic increase in phone calls to their employee-information lines.
If an individual files a charge of discrimination with the OSC, an employer should
provide a complete position statement in response to the charge of discrimination, realizing this
may be the first level of discovery for a later administrative hearing. The OSC may request
information that employers should address when responding to the charge of discrimination. The
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602.322.4046
[email protected]
OSC may conduct employee interviews, and review completed I-9 Forms. Employers should
consider mediation, if it is offered as an option.
Employers should take these matters seriously. Employers should also consider
involving legal counsel as soon as they receive notice that a charge of discrimination has been
filed. As discussed above, penalties can include reinstatement with back pay and monetary fines
of up to $375-$16,000 per employee, depending on whether it is a first or subsequent offense.
Another red flag for the OSC is if employers randomly decide to renew the completion of
I-9 Forms on an annual basis or on an arbitrary audit basis. Employers should ensure that they
are not requiring employees to complete a new I-9 Form on an annual basis. Once an employer
has a properly completed I-9 Form, there are limited circumstances that would cause the
employer to have to recomplete the I-9 Form. Those limited circumstances would include
completing a pre-audit of a company’s I-9 Forms and determining that a particular I-9 Form is
incomplete. In that circumstance, it is appropriate to complete a new I-9 Form and attach it to
the old I-9 Form to ensure that the company is in compliance with the laws. A company,
however, may not randomly select individuals whom they suspect may have counterfeit
documents and ask them to present the documents and complete an additional I-9 Form. As red
flag issues arise at your company, please check with legal counsel to determine the best way to
handle such situations, and steer clear of trouble with either the ICE Enforcement Office or the
OSC.
E.
Facts From Real Discrimination Cases.
1.
Incalza v. Fendi North America.
Giancarlo Incalza was an Italian national working as a manager of a Fendi store in
Beverly Hills on an E-1 visa. When Fendi was purchased by a French company, the E-1 visa
was no longer valid work authorization for Fendi employees. Incalza and one other employee
were affected. The Company helped the other employee acquire an H1-B visa and he continued
working for Fendi with no break in service.
Rather than assist Incalza to obtain a different work visa, the Company terminated his
employment. The Company told him, falsely, that nothing could be done about his work
authorization status. Incalza asked for unpaid leave in order to get different work authorization.
He was engaged to an American citizen and would be able to get temporary work authorization
after his marriage. The Company refused to grant him leave.
Incalza sued under California law for wrongful termination, breach of an oral contract,
and discrimination based on national origin. He alleged that the Company had made him
promises of continued employment and it breached those promises and acted in a discriminatory
fashion when it terminated his employment. The jury found for Incalza and awarded him over
$1,000,000.
Fendi appealed. It argued that it was required to terminate Incalza’s employment because
his visa was no longer valid. The Court rejected this argument, finding that the Company could
have helped him obtain an H1-B visa as it had with the other employee or that it could have
placed him on unpaid leave to give him time to resolve his employment authorization situation.
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602.322.4046
[email protected]
The Ninth Circuit reviewed the definitions of employee and employer in the regulations
regarding the employment of unauthorized workers and concluded that an employee is only
“employed” under the Immigration Reform and Control Act (IRCA) if the employee is actually
providing services, not if he is merely on the payroll and on leave. Therefore, the Company
would not have been in violation of IRCA for knowingly employing an unauthorized worker had
it placed Incalza on leave to allow him to seek other work authorization. The Court, however,
differentiated Incalza’s situation from that of an undocumented worker who did not have any
basis or prospect for getting legal work authorization and suggested that immediate termination
of such an employee may be more justified than the termination of Incalza’s employment, and
may be required.
In this case, IRCA was found to have been a pretense for a wrongful termination. The
Company was not protected from the discrimination and wrongful discharge suit by its strict
compliance with IRCA, because the Company could have complied with IRCA and still not
terminated Incalza’s employment.
Incalza v. Fendi North America, 479 F.3d 1005 (9th Cir. 2007).
2.
Zamora v. Elite Logistics.
In December 2001, Elite Logistics heard rumors of an INS raid so they hired independent
contractors to check the social security numbers of all employees. Approximately 35 employees
came back with errors or inconsistencies, including Ramon Zamora, who was a Mexican national
who had become a permanent lawful resident in 1987.
In May 2002, the Company gave Zamora and the other 35 people a letter that the work
documents they previously provided were questionable and required that the employees provide
documents within 10 days to verify work authorization. Zamora did not provide the required
documents within 10 days. After the Company met with him again, Zamora provided an
earnings report from the Social Security Administration, but it also had discrepancies, so the
Company refused to accept it. The Company also refused an INS document showing that
Zamora had applied for naturalization. The next day Zamora brought a letter from the Social
Security Administration. The Company said that they wanted to verify it before he could return
to work. The Company verified the information with the Social Security Administration. When
Zamora was supposed to return to work, he demanded an apology and an explanation from the
Company. The Company refused to apologize and terminated his employment. He sued under
Title VII. The district court granted summary judgment for Elite Logistics.
The Tenth Circuit originally reversed the lower court’s grant of summary judgment for
the employer, but an en banc panel, divided 7/7, affirmed summary judgment for the company
on rehearing. Seven judges of the Tenth Circuit said that there was insufficient evidence that the
termination was discriminatory or that the fears of an INS raid and charge were pretext for a
discriminatory termination. However, seven judges thought that there was evidence enough to
create a jury question regarding whether the suspension and termination were discriminatory.
Seven judges implied that asking for more or different documents than Zamora provided for the
I-9 was discriminatory. Although the employer avoided liability in this case, the Circuit split
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demonstrates that employers need to be cautious when verifying identity and work authorization
to not go overboard and act in a discriminatory manner.
Zamora v. Elite Logistics, 478 F.3d 1160 (10th Cir. 2007).
3.
Recent Office of Special Counsel Settlements
The Department of Justice Office of Special Counsel (OSC) has recently announced
several settlements of charges alleging discrimination by oververification of employment
authorization documents. On January 4, 2012, OSC reached a settlement with the University of
California San Diego Medical Center. OSC alleged that UCSD Medical Center made excessive
demands for documents from non-U.S. citizens that it did not require for citizens. UCSD
Medical Center agreed to pay a civil penalty of $115,000, train its human resources personnel,
and work with the Office of Special Counsel to develop employment eligibility verification
procedures.
In August 2011, the OSC reached a settlement with Farmland Foods, Inc. in Kansas City,
Missouri. Farmland agreed to pay $290,400 in civil penalties. Farmland required non-U.S.
citizens or foreign-born U.S. Citizens to present specific or additional documents. Non U.S.
Citizens were required to present permanent resident cards or employment authorization
documents and a social security card, rather than allowing the employees to present their choice
of documents for completing the Form I-9. Farmland also required some foreign-born U.S.
citizens to provide proof of citizenship. The Company also failed to follow the E-Verify
tentative non-confirmation procedures. The $290,400 settlement is the highest civil penalty ever
paid through settlement with the OSC. Farmland also agreed to training for human resources
personnel and reporting and monitoring by the Department of Justice.
F.
Special Issue Facing Employers Dealing With Defense Articles: Intersection
Between Itar And Anti-Discrimination Statutes
Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, firing or other
employment actions on the basis of an employee’s national origin. The statute also prohibits
employers from limiting, classifying or segregating employees or applicants for employment on
the basis of national origin, in any way that could have an adverse impact on his employment.
Title VII permits discrimination on the basis of national origin only in situations where the
employer can prove that the classification is a bona fide occupational qualification [“BFOQ”]
that is reasonably necessary to the normal operation of that particular business. The International
Reform and Control Act of 1986 (“IRCA”) which states that it is unlawful for an employer to
hire or to continue to employ an unauthorized alien, also prohibits discrimination in hiring,
recruitment or discharge because of an employee’s national origin or citizenship status. An
employer can defend itself against such claims by proving that national origin is a BFOQ or that
discrimination based on citizenship status is required in order to comply with another law or
regulation.
These statutes potentially conflict with the International Traffic in Arms Regulations
(“ITAR”). The Arms Export Control Act authorizes the President to control export and import
of defense articles. To that end ITAR implements that authority. ITAR states that it is unlawful
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for an employer to export or import defense-related technology or technical data to unauthorized
foreign nationals. This type of information can only be shared with U.S. citizens unless the State
Department approves access to a foreign national. While the regulations define a foreign
national as a person who is not lawfully admitted for permanent residence in the United States
and is not protected under the Immigration and Naturalization Act, it has also been interpreted to
consider a person’s birthplace, not just their citizenship, when determining which people will be
allowed access to the information. An export can occur through a number of mechanisms,
including; a visual inspection of equipment and facilities, verbal exchanges of technology,
electronic transfers, facsimile transmissions, the application of knowledge gained in the United
States to situations abroad or through posting regulated technology on the internet. Additionally,
people affected by ITAR are not only the people who work with the technology, but anyone who
could possibly access it, even if they never do. Specific countries are also named in the statute
and, because of their relationships with the United States or the United Nations, these countries’
nationals will likely be denied licenses and/or approval to access the regulated information.
These countries include: Belarus, Cuba, Iran, North Korea, Syria, Venezuela, Burma, China,
Liberia, Sudan, Cote d’Ivoire (the Ivory Coast), Congo, Iraq, Lebanon, Rwanda, Sierra Leone,
Somalia, Afghanistan Haiti, Libya and Vietnam.
The intersection of these statutes presents a dilemma. While Title VII and IRCA prohibit
employers from discriminating against potential or existing employees because of their national
origin, under ITAR the same employers are also prohibited from employing foreign nationals,
without proper authorization, if their facility contains protected information. A reasonable
solution to this dilemma is a conditional employment offer when hiring new employees.
Workplaces which contain protected information are aware of their situation (they usually have
to obtain licenses for the information) and therefore could extend a job offer to a potential
employee on the condition that they get approved by the State Department for this ITAR
position. While this is not an ideal solution, the existence of the conflicting statutes makes it
impossible to extend unconditional employment offers to potential employees without first
differentiating candidates based on their national origin (which would be illegal) or firing the
employee soon after he is hired because he does not meet the State Department’s requirements.
VI.
NEW 2-PAGE I-9 FORM ISSUED MARCH 8, 2013
On March 8, 2013, ICE issued a new Form I-9 with some of the most significant changes
since the I-9 form was first released in 1986. The biggest change is that the I-9 form is now two
pages and the instructions have been expanded to six pages. The information required remains
essentially the same. Section 1 takes up all of page one, and Sections 2 and 3 are now both on
page 2. The USCIS encouraged employers to use the new Form I-9 immediately upon its
release, but the law provided a 60-day grace period for the transition requiring that all employers
use the new two-page Form I-9 before May 7, 2013.
The two-page Form I-9 is supposed to be easier to understand and complete, because
USCIS states that it provides more space and has more complete instructions. Additionally,
USCIS added explanatory phrases or changed terms to make them clearer. For example, the new
form uses “other names used” rather than “maiden name” and after “last name” a parenthetical
“family name” is added to clarify the actual name required in each section.
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602.322.4046
[email protected]
The instructions require that dates be listed in month, day, year format. The Form I-9
used to have “(month/day/year)” after the dates, and now it states “(mm/dd/yyyy)” to increase
understanding of the date format that is required to be used on the form.
One of the biggest changes in Section 1 is the addition of the telephone number and email
address boxes. This information is OPTIONAL. Employees who do not want to provide their
phone number or email address (or do not have them) should put N/A in the applicable box.
USCIS believes that including the contact information is supposed to make it easier for the
employer or DHS to contact an employee about an E-Verify tentative non-confirmation or Social
Security number mismatch.
The Section 1 attestation section added a field for certain foreign nationals who obtain
their I-94 documents at the border upon entry to the US (as opposed to receiving a tear-off card
from the USCIS) to list their foreign passport information. This section is intended to be used
with the automated I-94, which has not yet been fully implemented by the USCIS.
Where the old Form I-9 requested an “Alien #,” the 2013 form requests an “alien
registration number/USCIS number.” This is the same number, but it is called different terms on
different documents so the Form I-9 now lists both names to make it easier to understand what is
needed.
Finally, a “3-D Barcode” box was added to the I-9 form. USCIS has stated that this is for
“future use” and there is speculation that this is part of a plan to move the Country towards
electronic I-9 forms.
After the “Preparer/Translator” box on page 1, USCIS has inserted a “Stop Sign” that is
supposed to help ensure that employees do not try to fill in information in Section 2.
Page 2 of the new Form I-9 starts with the instructions, then contains a box for the
employer to list the employee’s name. The Form I-9 instructions state that the employer should
list the name as it appears in Section 1 of the I-9 Form. This section is intended to assist the
employer if the 2 pages of the Form I-9 become separated. We recommend that as a best
practice the employer print the Form I-9 two-sided to ensure that the pages cannot become
separated. However, even if the employer prints the Form I-9 two-sided, the employee name
must still be included in the top portion of Section 2.
The 2013 Form I-9 contains three documents and expiration fields under Section A (as
opposed to two on the previous Form I-9). The third, additional field is primarily for use with
certain foreign student workers whose work authorization is demonstrated by multiple
documents.
Section 2 removes the employee start date from the certification statement and moves the
start date onto its own line. This makes it easier to see and helps ensure that employers do not
miss filling it out, which has been a common mistake we see when doing I-9 audits.
Additionally, USCIS has indicated that the employee start date was removed from the
employer’s certification to make it clear that the employer is not certifying the accuracy of the
start date. USCIS indicates that the employer is allowed to use an estimated start date if the
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[email protected]
employee completes the Form I-9 after the offer of employment but before the first day the
employee actually works.
On the 2013 two-page Form I-9, the title of Section 3 has been changed from “Updating
and Reverification” to “Reverification and Rehires.” This was intended to make it clear that
there is no requirement that employers update the Form I-9 if an employee changes his or her
name (but may do so in a non-discriminatory fashion).
Page 2 also includes a “3-D Barcode” box that is for some as-yet undefined future use.
With the possibility of mandatory E-Verify, it is likely that an electronic I-9 that can integrate
with E-Verify is possible in the not-too-distant future. Although the new Form I-9 provides extra
space, we recommend that employers do not use this extra space to make notes regarding the
employee. Rather, the employer should continue to use detachable notes. Do not write
employee ID numbers on the Form I-9.
In conjunction with the new 2-page Form I-9, USCIS issued an updated M-274
Handbook for Employers on March 8, 2013. Employers should make sure to train employees
who will be completing the Form I-9 on behalf of the Company and ensure that they are familiar
with the new Form I-9 and the M-274 Handbook.
VII.
REHIRES
If you rehire an employee within three years of his or her previous hire date, you may
rely on the information on his or her previous Form I-9.
If you rehire an employee for whom you never created an E-Verify case and the
employee’s previous Form I-9 lists an expired identity document (List B), then you must
complete a new form I-9 and create a case for the employee in E-Verify.
If you rehire an employee for whom you created an E-Verify case and the employee’s
previous Form I-9 lists an expired identity document (List B), then you may either:
1.
Complete Section 3 of the employee’s previous Form I-9 and not create a
new case for the employee in E-Verify; or
2.
Complete a new Form I-9 for the employee and create a new case for the
employee in E-Verify.
VIII. I-9 FORMS AND PRE-AUDIT STEPS TO PREVENT LIABILITY.
A.
Employees hired after November 6, 1986, must have properly completed I-9
forms.
B.
Review I-9 forms for completeness.
C.
Employee must fill out, sign, and date Section 1. Entire section must be
completed by employee. The regulations require Section 1 to be completed on the
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first day of employment, but employers are permitted three (3) business days to
complete the entire form.
D.
There is no requirement that the employee present any documents to complete
Section 1. Employers may not request documents to verify information provided
in Section 1. To do so may be an immigration-related unfair employment
practice.
E.
If the employee does not read English, a translator/preparer can be used to fill out
Section 1. The employee is still required to sign his or her name. The
translator/preparer must also sign at the bottom of Section 1. ICE may interview
the translator/preparer during an investigation.
F.
The employee must check one of the four boxes regarding citizenship in
Section 1. If the employee has a permanent resident alien card, the employee
should check box 3, Permanent Resident. If the employee has an EAD card, the
employee should check box 4.
G.
If information is missing from an I-9 so it is not fully complete, then complete a
new I-9 Form and use the current date on which you reviewed the documents as
the date the I-9 is completed, but identify the original hire date for the
"employee's first day of employment" in Section 2.. Keep both the original and
updated I-9 forms together.
H.
Keep I-9 forms separate from personnel files.
I.
ALWAYS KEEP CURRENT EMPLOYEES’ I-9 FORMS. After an employee
has resigned or is terminated from the company, the length of time after
separation the company must keep the I-9 depends on the duration of
employment. An easy way to make sure the Company is in compliance with the
retention of I-9 forms is to abide by the following rules:
1. Enter date employee started work: ___________________
Add 3 years to Line 1.
A. ___________
Add 1 year to Line 2
B. ____________
Enter later date here.
C. _____________
Store Form I-9 until
this date.
2. Termination date:____________
Which date is later: A or B?
J.
Do not maintain a copy of back-up documentation, as long as Form I-9 is properly
completed, unless otherwise required, for example, by E-Verify (for use with the
Photo Tool) or by state law (e.g. Colorado).
K.
Consider whether or not to keep back-up copies of documents received from
individuals who present counterfeit, false or suspect documents. On the one hand,
this can be helpful when dealing with ICE as it can be used to show that an
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employer takes verification seriously. On the other hand, when dealing with the
Office of Special Counsel of the Department of Justice (“OSC”), this
documentation will provide a list of individuals they may want to interview to
seek out discriminatory verification efforts.
L.
The Form I-9 will be used by ICE as evidence in any ICE investigation.
M.
ICE Suggestions Regarding Review of Social Security Cards and Other
Documents.
1.
Application for Social Security card is not proper identification. An
employer may accept a receipt from the Social Security Administration for
an employee who has lost his or her Social Security card and is waiting for
a replacement card for an existing number.
2.
Employees must present original unexpired documents, not photocopies.
3.
Social Security cards are not immigration documents, but can be used to
establish employment authorization. Social Security cards have been
issued since 1936, and have been revised more than 20 times. The
following provides some information about Social Security card
validation:
(a)
If Social Security card starts with a “9”, it is generally a tax
identification number, not an SSN and cannot be used for
employment purposes.
(b)
Issue date of card is on reverse side for older cards (i.e., 1-88).
(c)
All cards issued after 1983 include:
(i)
Columns on right and left side should be raised when
touched.
(ii)
If card held under magnifying glass, employer should see
“Social Security Administration” throughout card.
(iii)
The signature line should consist of microline printing of
the words “Social Security Administration” in a repeating
pattern.
(d)
Cards issued after April 1995 should read “Social Security
Administration” on the seal in lieu of “Health Human Services.”
Cards issued prior to 1980 may have a seal that reads “Social
Security Board.”
(e)
Changes to Social Security Cards were implemented in April 2007,
as follows:
(i)
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The card issuance date was added to the front of each card.
This date reflects the date that SSA processed the
application for that particular card. Information about the
issuance date was also added to the perforated attachment
to the card.
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(ii)
(f)
Signing instructions were added to the perforated card
attachment. The instructions state "ADULTS: Sign this
card in ink immediately. CHILDREN: Do not sign until
age 18 or your first job, whichever is earlier."
Additional changes to Social Security Cards were implemented on
October 1, 2007, as follows:
(i)
A guilloche background pattern, which is a unique nonrepeating spiral design, will replace the existing marbleized
pattern. The new pattern is very similar in color to the
current background and will continue to have the security
feature of being erasable. This background is computer
generated and very difficult to duplicate.
(ii)
A latent image has been added to the SSN card face. This
feature, a text image, is visible only when the document is
viewed at a specific angle or angles.
(iii)
A split fountain production method was added which
produces a unique ink color mixture on the press that then
transfers to the paper. The colors on the background of the
card flow from blue to aqua.
(iv)
Color shifting inks were added to the face of the card.
These inks have a multilayer light interference ink pigment
imbedded that creates a noticeable color shift when moved
in front of a light source. This feature if also used in
currency
(g)
Do not accept laminated, metal or plastic reproductions of Social
Security cards.
(h)
Social Security cards marked “not valid for employment” or “valid
for work with DHS authorization” are not acceptable to show work
authorization.
(i)
If an employee informs the company that the employee's Social
Security number on record is incorrect, the company should
consult legal counsel regarding whether it can continue to the
employ the individual after the individual proves that he or she is
lawfully authorized to work in the United States. If continuing to
employ the individual, the employer should consult their tax
advisor and consider filing a Form W-2C for the years in which the
employer reported income and withholding under the incorrect
Social Security number.
Make sure that the names on the documents generally appear to match the name the
person is using on the Form I-9 and any other employment-related documents. Paychecks should
be made payable to the same name used on the Form I-9 and qualifying documents.
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IX.
RECOMMENDATIONS REGARDING I-9 FORMS.
Employers can significantly lessen the likelihood of litigation and liability under the Act
by taking the following steps:
1.
Train specific individuals to handle completion of I-9 Forms and centralize the
process. Maintain records of all training provided.
2.
Conduct a Self-Audit.
3.
Advise all supervisors and human resources representatives about IRCA and
IIRIRA.
4.
Note that discrimination on the basis of citizenship is generally illegal.
5.
Recognize that employment decisions cannot be made on the basis that an
individual’s work authorization will expire at some point in the future.
6.
Keep detailed records regarding verification procedures.
7.
Do not specify for employees what documents need to be presented. Rather, allow
the applicant/employee to review a list the employer maintains separately or
simply review the list contained on the Form I-9.
8.
If necessary, have the list of acceptable documents translated into another
language.
9.
Be aware that requiring employees to present a permanent resident card may
constitute a violation of the Act if intent to discriminate is shown.
10.
Remember that an employee is not required to provide documents to verify
information in Section 1, and an employer may not ask for documents to verify
information in Section 1.
11.
Do not question the employee about documents that appear to be genuine.
12.
Be consistent in applying the verification procedures. Verify each employee’s
status in the same manner and at the same time (i.e., the first day of employment).
13.
Singling out employees, particularly if they look “foreign” or have an accent,
leads to potential discrimination claims.
14.
An I-9 Form and employment authorization verification should be completed only
after the employee has been hired.
15.
Make sure to keep both pages of the Form I-9 together securely. It is permissible
to print the I-9 two-sided, which would help ensure that the two pages are not
inadvertently separated.
16.
Make sure your company has established a tickler system regarding the expiration
dates of documents, such as temporary work cards, that demonstrate the
expiration of an employee's work authorization. Employers must reverify work
authorization on or before the date that that the original work authorization
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expires. Companies may want to begin notifying employees six months prior to
the expiration date to ensure the employee has sufficient time to obtain a new
card.
17.
Do not allow an employee with temporary work authorization to work past the
expiration date on their employment authorization document or other temporary
work authorization card.
18.
The Social Security Administration can be contacted at (800) 772-6270 to verify
up to ten (10) employee’s Social Security numbers using the Telephone Number
Employer Verification system (TNEV). Employers may also use the online
Social
Security
Number
Verification
Service
(SSNVS)
at
www.SocialSecurity.gov/employer to verify employees’ Social Security numbers.
Employers must be registered with the Social Security Administration before
using the TNEV. Do not arbitrarily select some individuals for verification.
Apply any policy uniformly.
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[email protected]
WHAT TO DO WHEN ICE COMES KNOCKING?
BY
JULIE PACE
THE CAVANAGH LAW FIRM PA
I.
INTRODUCTION
One of ICE’s primary responsibilities is worksite enforcement. Originally, ICE worksite
enforcement, or Homeland Security Investigations (HSI), investigated and took action both
against employers who knowingly hired illegal workers and against the workers themselves. In
recent years, however, ICE leadership has issued directives that ICE is to use its resources and
manpower to focus on employers knowingly employing unauthorized individuals and
unauthorized individuals that pose a special threat or danger to safety and welfare.
On April 30, 2009, ICE HSI implemented a revised worksite enforcement plan. The
strategy prioritizes the use of criminal prosecutions against employers that knowingly employ
unauthorized workers, abuse their workers, engage in human smuggling or trafficking, engage in
identity and benefit fraud, or participate in other forms of criminal activity. Importantly, the
April 30, 2009, plan shifted the focus of worksite enforcement from employers and
employees jointly to focus more on employers.
The April 30, 2009, worksite enforcement policy was characteristic of a shift in attitude
towards immigration. The new worksite enforcement strategy also focuses less heavily on
punishments against employers (although criminal prosecutions remain a priority for ICE HSI),
to community outreach and building a partnership between businesses and the Federal
Government through the use of warning notices and an outreach and educational program known
as ICE Mutual Agreement between Government and Employers (“IMAGE”) that would provide
training and other benefits that would potentially aid a Company in complying with immigration
laws. The Government's goal with this plan was to develop and foster an employment culture of
compliance that would ultimately deter unauthorized entry into the United States and to focus
arrest and detainment efforts on individuals who pose a special threat to the United States.
II.
NOTICE OF INSPECTION
The first step in the audit process is service of the Notice of Inspection, which is a form
of subpoena. The administrative inspection process is commenced by the service of a Notice of
Inspection (NOI) on an employer requiring the production of Forms I-9. The employers are
provided with at least three (3) business days to produce the Forms I-9. Employers should not
waive the three business day notice. ICE often will give the employer the opportunity to waive
the three business days and turn over Forms I-9 to ICE at that time. Waiving the three day notice
is not recommended because the audit process can be complicated and delicate. The employer
should not rush to turn over documents before the three days expires. As part of the Notice of
Inspection, ICE may request, and often does request that the employer provide additional
documentation, which may include a copy of the payroll, list of current employees, list of former
employees, copies of unemployment quarterlies, Articles of Incorporation, and business licenses.
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After three business days have passed and the date arrives when the employer must turn
over all Forms I-9 and other requested documents, ICE agents or auditors then conduct an
inspection of the Forms I-9 for compliance. This inspection can take as little as six weeks or
three months or longer than six months. There is no set time line for which ICE must review and
return the Forms I-9.
During the review period, ICE may attempt to conduct a deeper investigation that appears
to go beyond the scope of a routine I-9 audit. Law enforcement agents sometimes seek to
question employees in an I-9 audit, and may try to do so outside of the workplace. This can be a
stressful and intimidating experience. It is very important that employees understand their rights
with respect to being questioned by government agents in order to protect the legitimate interests
of both the employees and the Company. Employees who answer questions without
understanding their rights and obligations as a witness can end up waiving their legal rights or
getting themselves into trouble.
In the event you are contacted by the Department of Homeland Security, an employee has
the right to:
1.
Tell the law enforcement agent that the employee does not wish to be interviewed
at this time and ask them to schedule the interview with the Company’s attorney;
2.
Speak to the law enforcement agency with the Company's counsel present;
3.
Speak to the law enforcement agency with private counsel present; or
4.
Speak to the law enforcement agency. If the employee does decide to speak with
the law enforcement agent, obviously the employee must be truthful, accurate,
and complete.
Managers and supervisors are different than employees and generally ICE coordinates manager
and supervisors interviews with the company's legal counsel.
III.
III.
NOTICE OF TECHNICAL OR PROCEDURAL FAILURES
After the ICE auditor has concluded the inspection of the employers Forms I-9 and other
requested documents, there are three possible notices that the employer may receive. The first of
these notices is called the Notice of Technical or Procedural Failures. The Notice of Technical
or Procedural Failures identifies technical violations identified during the inspection, often
referred to as "paperwork violations." The employer is then given ten (10) business days to
correct the forms. There are standard steps the employer should take when correcting Forms I-9.
However, each auditor is different and may instruct that the forms are corrected in a particular
manner that is the preference of that auditor. Seek legal counsel before following different
instructions.
After ten (10) business days, uncorrected technical and procedural failures generally
become substantive violations. If is important to realize that while a Form I-9 may be corrected,
some errors, such as missing signatures, may still be considered substantive violations and result
in a fine.
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IV.
NOTICE OF SUSPECT DOCUMENTS
The Notice of Suspect Documents is one of the most critical notices a company receives.
A company should pay strict attention to and not miss deadlines worked out with ICE or that are
contained in the Notice. The Notice of Suspect Documents advises the employer that based on a
review of the Forms I-9 and documentation submitted by the employee, ICE has determined that
an employee is unauthorized to work. The Notice of Suspect Documents also advises the
employer of the possible criminal and civil penalties for continuing to employ that individual,
therefore, the Company should meet with the employee. The employee must be given a right to
contest as explained below. Currently, the Notice allows the employer up to 10 days from the
date of receipt of the Notice of Suspect Documents to terminate the individuals identified in the
Notice.
ICE is not perfect and it does make mistakes. When an employee is informed that he or
she is on the Notice of Suspect Documents List, ICE provides the employer and employee an
opportunity to contest. Sometimes ICE will meet with the employee or ICE may ask the
company to obtain additional copies of additional documentation from the individual that can
demonstrate work authorization if an employee believes the finding is in error. Generally, this
action requires the employee to sign a Notice of Contest form. ICE typically will then follow up
on its investigation and may require copies of documents from the List of Acceptable Documents
to verify employment authorization.
V.
NOTICE OF UNAUTHORIZED ALIENS
The Notice of Unauthorized Aliens is very similar to the Notice of Suspect Documents.
The Notice of Unauthorized Aliens states the individuals who have been employed by the
Company are unauthorized to work. The main difference between the Notice of Unauthorized
Aliens and Notice of Suspect Documents is that the Notice of Unauthorized Aliens only pertains
to individuals who have been apprehended by ICE.
The Notice of Unauthorized Aliens warns that, unless the employee presents valid work
authorization documentation, continued employment of that individual may subject the Company
to civil penalties based on knowingly violations. These penalties can be astronomical because of
the seriousness that comes along with a knowingly violation. Additionally, the Company may be
subjected to criminal sanctions for knowingly employing unauthorized individuals.
VI.
NOTICE OF INTENT TO FINE. WHAT NOW?
A.
Can We Negotiate the Amount of the Fine?
Generally, yes. There are many factors that can be used in negotiating the lowering of a
fine. One of the strongest arrows in a Company's quiver to reduce fine amounts is the showing
of good faith compliance with immigration policies that go above and beyond what is required
by law. Examples of going beyond the law without violating civil rights are implementing a
Company-wide immigration compliance policy, ensuring immigration compliance trainings
occur with managers and individuals who complete the Form I-9s, obtaining signed immigration
compliance acknowledgement forms by all employees, signed Forms W-9, which require the
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employee to attest to their social security number under penalty of perjury, plus a variety of other
compliance strategies.
There are a number of legal and factual defenses that can be used to lower the fine. In
addition, ICE can work with companies regarding a payment plan.
B.
Can We Go to Court to Fight This?
Yes. As always, going to trial is a decision that must be made by the Company. If the
Company decides that it wants to fight ICE's determination in court, the Company may do so in
the Office of the Chief Administrative Hearing Officer ("OCAHO") courts (see below). If the
OCAHO Tribunal issues a decision adverse to the Company and the Company has grounds on
which to appeal the decision, the appeal will travel to the federal circuit courts of appeal.
C.
What is OCAHO?
The Office of the Chief Administrative Hearing Officer ("OCAHO") is comprised of
Administrative Law Judges who preside at hearings that are authorized by the Immigration
Reform and Control Act of 1986 (IRCA) and the Immigration Act of 1990.
Administrative Law Judges hear cases and sit in judgment regarding issues arising under
the provisions of the Immigration Nationality Act relating to the following areas:
1.
Knowingly hiring, recruiting, or referring for a fee or the continued employment
of unauthorized aliens, and failure to comply with employment eligibility
verification requirements of section 274A of the INA (employer sanctions)
2.
Immigration-related unfair employment practices in violation of section 274B of
the INA; and
3.
Immigration-related document fraud in violation of 274C of the INA. Complaints
are brought by the Department of Homeland Security, the Office of Special
Counsel for Immigration-Related Unfair Employment Practices in the Department
of Justice, or private individuals as prescribed by statute.
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STATE IMMIGRATION AND E-VERIFY LAWS
BY
JULIE A. PACE
DAVID A. SELDEN
HEIDI NUNN-GILMAN
THE CAVANAGH LAW FIRM PA
I.
INTRODUCTION
Immigration is traditionally exclusively a federal issue. The current immigration and
naturalization system, however, is unable to provide work authorization, residency, or citizenship
for the large numbers of immigrants coming to the United States each year. See “Immigrating
Legally? Good Luck!” in the attached appendix. The federal government has failed in its
attempts to pass a comprehensive immigration reform bill to address the problems in the
immigration system. As a result, several states, and some local governments, have decided to
take action to address immigration related issues, rather than waiting for the federal government
to act. In the past four years, states have proposed and passed dozens of laws relating to
immigrants and employment, public benefits, housing, education, state-issued identification,
identity-theft and law enforcement, among others.
In 2012, state legislatures slowed down the immigration-related proposals, but there were
still nearly 1,000 bills introduced and 156 laws enacted in 44 states that related to immigrants or
immigration. In 2011, over 1,600 bills and resolutions were introduced in 50 states relating to
immigrants and refugees, and 306 laws and resolutions were adopted. In 2010, more than 1,400
bills were introduced and 208 laws passed. In 2009, over 1,500 bills or resolutions were
considered with every state addressing immigration proposals. Over 300 laws or resolutions
were adopted in approximately 25 states. In 2008, over 1,300 bills had been considered in 44
states, 206 laws, 64 resolutions or memorials were enacted or adopted that will impact
immigrants, according to a report from the National Conference of State Legislatures. In the first
quarter of 2007, 1,169 bills and resolutions were introduced, and 18 states enacted 57
immigrations laws and adopted 19 resolutions and memorials. In addition to Arizona,
Tennessee, Georgia, Colorado, Arkansas, Mississippi, Virginia, Oklahoma, Nevada and Utah
have enacted employer sanctions immigration laws. 1
In addition to employer sanctions and E-Verify laws, which are the only ones discussed
in these materials, states have passed a variety of laws limiting benefits to unauthorized aliens,
making it criminal trespass for an unauthorized person to be in the state, requiring state law
enforcement to question people about their immigration status while the officer enforces other
state laws, and various other actions designed to drive undocumented aliens out of the state.
Arizona's SB 1070 was one of these laws, and is currently the subject of a court injunction
against many parts of the law. On June 25, 2012, the U.S. Supreme Court ruled in Arizona v.
United States that several provisions of SB 1070, including the section making it a misdemeanor
for an immigration not to be carrying documentation of lawful presence in the country and
1
Other states have passed or proposed laws that are not discussed here, so be sure to check the
laws in the states in which your businesses operate.
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allowing state police to arrest without a warrant in some situations. The portions of SB 1070
allowing police to investigate immigration status of persons that are detained or arrested as long
as there is reasonable suspicion basis for doing so.
These materials do not address state immigration laws other than the employer sanctions
laws, but employers should be aware of other state laws and how they might impact the economy
and the state's workforce.
Many of the state and local laws faced legal challenges. The Hazleton, Pennsylvania
ordinance is currently the subject of legal challenges in the Third Circuit Court of Appeals. The
Oklahoma law was mostly invalidated by the Tenth Circuit Court of Appeals. The U.S. Supreme
Court recently upheld the Legal Arizona Worker's Act. But until the federal government acts to
prohibit states from regulating immigration-related issues or a court decision prohibits state
action, employers with businesses in multiple states will be faced with the challenge of
complying with immigration rules that vary from state to state and may even conflict with one
another.
The laws relating to the employment of aliens have developed three key themes: (1)
suspending or revoking the business licenses of an employer who knowingly employs an
unauthorized alien; (2) requiring the use of E-Verify either for government contractors or for all
employers, or providing additional defenses to employers who use E-Verify; and (3) creating a
private right of action for terminated employees, allowing them to bring a lawsuit against an
employer if the employer knowingly employed an unauthorized alien while terminating the
employment of a U.S. citizen or authorized worker. Many of the states have made it a felony to
use the identity of another individual, even a fictitious individual, to obtain employment, have
increased the penalties for identity theft relating to obtaining employment, and passed laws
relating making it a state felony to transport or harbor an unauthorized alien.
II.
STATES REQUIRING E-VERIFY.
Several states require some or all employers to use E-Verify The following chart
summarizes mandatory E-Verify requirements. Some other states, such as Tennessee, do not
require E-Verify but do provide an affirmative defense to employers who use E-Verify.
State
Citation
Year
Enacted
1
Alabama
HB 56
HB 658
2011
2012
All employers (phase in)
Contractors and subcontractors; prime
contractors not liable for subcontractor
complying with E-Verify unless they know
of the violation
2
Arizona
HB 2779
HB 2745
2007
2008
All employers
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Applies to:
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3
Colorado
HB 1343
SB 139
SB 193
2006
2008
2008
State agencies, contractors
4
Florida
EO 11-02
EO 11-116
2011
2011
State agencies, contractors, subcontractors
5
Georgia
SB 529
HB 2
SB 447
HB 87
HB 742
HB 1027
2006
2009
2010
2011
2012
2012
Public employers, contractors,
subcontractors with 500+ employees
(phase in)
6
Idaho
EO 2009-10
2009
State agencies, contractors
7
Indiana
SB 590
2011
State agencies, contractors
8
Louisiana
HB 342
HB 646
HB 996
2011
2011
2012
State contractors
Option for private employers
9
Michigan
HB 5365
2012
State agencies, contractors, subcontractors
10
Mississippi
SB 2988
2008
All employers (phase in)
11
Missouri
HB 1549
HB 390
2008
2009
Public employers, contractors,
subcontractors
12
Nebraska
LB 403
2009
Public employers, contractors
13
North Carolina
SB 1523
HB 36
2006
2011
State agencies, universities
Localities, all employers (phase in)
14
Oklahoma
HB 1804
2007
Public employers, contractors,
subcontractors
15
Pennsylvania
SB 637
2012
Public contractors, subcontractors
16
South Carolina
HB 4400
SB 20
HB 4813
2008
2011
2012
Public employers, contractors (phase in)
Private employers
Establishes a 24-hour hotline to report EVerify violations
17
Tennessee
HB 1378
2011
All employers with 6+ employees (phase
in)
18
Utah
SB 81
SB 39
2008
2009
Public employers, contractors,
subcontractors
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SB 251
HB 116
2010
2011
Private employers with more than 15
employees
19
Virginia
HB 737
HB 1859
SB 1049
2010
2011
State agencies
Public contractors, subcontractors with
more than 50 employees
20
West Virginia
SB 659
2012
Public Employers, contractors
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THE LEGAL ARIZONA WORKERS ACT (LAWA)
BY
JULIE A. PACE
DAVID A. SELDEN
HEIDI NUNN-GILMAN
THE CAVANAGH LAW FIRM PA
III.
ARIZONA'S EMPLOYER SANCTIONS LAW: THE LEGAL ARIZONA
WORKERS ACT (LAWA)
The Arizona Legislature, in its final hours before adjournment on June 20, 2007, passed
the so-called Legal Arizona Workers Act. Governor Napolitano signed the Act on July 2, 2007,
which passed with bipartisan support despite the opposition of representatives of the business
community. Some legislators felt pressured to pass a bill because its backers threatened to put an
even stronger measure on the ballot and, if passed by voters, the law could not be easily amended
by the Legislature to correct problems that arise. The need for amendments to LAWA became
immediately apparent, and on April 28, 2008 the Arizona legislature passed HB 2745 to amend
LAWA and clarify some of its provisions.
LAWA makes sweeping changes for Arizona employers, including:
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
Employers who "knowingly" or "intentionally" employ an unauthorized
worker after January 1, 2008 could have their business license suspended
or revoked. The “mens rea” or employer’s “knowledge” for knowingly or
intentionally employing an unauthorized worker should be a high standard
according to the Maricopa County Attorney.

Employers will face investigation and prosecution by County Attorneys
and the Arizona Attorney General, in addition to federal ICE authorities.
County Sheriff’s offices and other local law enforcement agencies may
participate in investigations under LAWA.

All employers must use E-Verify to verify employment eligibility of all
newly hired employees after January 1, 2008.

Employers who enroll in a voluntary employer-enhanced compliance
program that includes the Social Security Number Verification Service
and certain other requirements are provided an additional defense against
LAWA violations.

HB 2745 added penalties on employers who pay employees cash and fail
to withhold taxes, pay unemployment insurance or worker’s compensation
premiums.
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A.
Prohibition Against "Knowingly" or "Intentionally" Employing an
Unauthorized Worker.
LAWA prohibits employers from "knowingly" or "intentionally" employing an
unauthorized alien. A "knowing" violation is defined to mean the same thing as a knowing
violation of federal immigration law, which allows violations to be based on an employer’s
constructive knowledge of a person’s lack of legal status, other than the person’s appearance or
accent. "Intentionally" employing an unauthorized alien means that the Company has knowledge
of the circumstances that make its conduct illegal, even if the Company did not know that its acts
or omissions violated the law. The penalties imposed are more severe for "intentionally"
employing an unauthorized alien than for "knowingly" doing so.
B.
Effective Date of LAWA Was January 1, 2008.
LAWA went into effect on January 1, 2008. Originally, it appeared to apply to all
employees at a company, regardless of when they were hired. The Legislature, however,
clarified in the amendments to LAWA passed in April, 2008 that the sanctions apply only to
employees hired on or after January 1, 2008.
C.
Investigations by the State Attorney General, County Attorneys, County
Sheriffs, and Local Law Enforcement.
LAWA requires the Attorney General and County Attorneys to investigate employers
when they receive a complaint that the employer employs an unauthorized worker in violation of
the law. The law specifically authorizes the County Sheriff or local law enforcement to assist in
the investigation. The law requires the Attorney General to investigate complaints submitted in
writing on an official complaint form. They may, but are not required to, investigate complaints
that are not on the official form, including anonymous complaints. Some county attorneys will
accept anonymous complaints, while others will not.
The Attorney General or County Attorney is required to verify the worker’s status by
checking with federal immigration authorities through the use of a computer determination
pursuant to an 8 U.S.C. § 1373(c) determination. There are penalties for knowingly filing a false
or frivolous complaint against an employer.
D.
Complaints Based Solely on Race or National Origin May Not Be
Investigated.
The original Act did not include any limitations on race-based or discriminatory
complaints. The amendments in HB 2745 prohibit the investigation of complaints based solely
on race or national origin. It does not, however, prohibit the investigation of complaints based
partially or primarily on race or national origin.
E.
County Attorneys Will Prosecute Complaints That Are "Not Frivolous".
If the Attorney General or County Attorney determines that the complaint is "not
frivolous," it is expected that they generally will:
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
Notify federal immigration authorities.

Notify local law enforcement.

File a lawsuit against the employer.
There are 15 county attorneys in Arizona, and many have developed their own
procedures for handling these types of complaints and prosecutions. Courts are required to
expedite the lawsuits by holding a hearing as soon as "practicable." Companies should be able to
introduce in the courts the immigration compliance steps taken to demonstrate good faith,
including but not limited to the affirmative defense of I-9 compliance, training classes,
immigration policies included in handbooks and new hire packets, W-9s signed by the
employees verifying the employee’s SSN, etc.
F.
Penalties for Knowingly or Intentionally Employing an Unauthorized
Worker.
The penalties for employing unauthorized workers differ depending on whether the
employer "knowingly" employed the unauthorized alien or "intentionally" employed an
unauthorized alien.
1.
Penalties for "Knowingly" Employing an Unauthorized Worker.
If the Court finds an employer to have "knowingly" employed an unauthorized alien, the
Court may suspend the employer’s business licenses for 10 days. When deciding whether and for
how long to suspend the employer’s business license, the court is to consider factors such as (i)
the number and duration of unauthorized aliens employed; (ii) whether the employer made good
faith efforts to comply with immigration laws; and (iii) the role of the employer’s directors,
officers, or principals in the violation.
In addition to facing a suspension of business licenses, the employer is subject to a three
year probationary period. If the employer knowingly or intentionally employs an unauthorized
worker during the probationary period, the employer’s business license(s) is permanently
revoked. After three years with no additional violations, the employer has a clean slate.
2.
Penalties for "Intentionally" Hiring an Unauthorized Worker.
If an employer is found to have "intentionally" employed an unauthorized alien, the court
must suspend the employer’s business license(s) for at least ten days. The Court may suspend the
employer’s business license(s) for more than ten days, based on the same factors described above
for suspending an employer’s license(s) after a "knowing" violation.
In addition to the license suspension, the employer is subject to a five year probationary
period. If the employer knowingly or intentionally employs an unauthorized worker during the
probationary period, the employer’s business license(s) is permanently revoked. After five years
with no additional violations, the employer has a clean slate.
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3.
Licenses Subject to Suspension or Revocation.
The licenses that will be suspended or revoked upon a finding of a knowing or intentional
violation include "any agency permit, certificate, approval, registration, charter, or similar form
of authorization that is required by law and that is issued by any agency for the purposes of
operating a business" in Arizona, such as articles of incorporation, certificates of partnership, and
transaction privilege (sales) tax licenses. There are a few exceptions, such as some
environmental licenses and professional licenses. There are various provisions and words that
may require court interpretation when LAWA is used against a company. There is a legal
question as to whether a company’s articles of incorporation or partnership agreements actually
constitute a license for purposes of LAWA.
The licenses at risk are all those “specific to” the business location where the
unauthorized worker performed services. If the employer does not hold a license “specific to”
that location, all licenses for the employer’s primary place of business are subject to suspension
or revocation.
4.
Requirements During Probationary Period: Affidavits and Quarterly
Reports.
Upon finding a violation, the court will order the employer to terminate the employment
of all unauthorized aliens employed in the state of Arizona. In addition, the company must file a
sworn affidavit with the County Attorney within three business days after the date of the order
affirming that the employer has done so and will not intentionally or knowingly employ an
unauthorized alien in Arizona. If the employer does not submit the sworn affidavit, the
employer’s business license(s) will be suspended until the sworn affidavit is submitted to the
County Attorney.
During the three or five year probationary period for either a knowing or intentional
violation, the employer must file quarterly reports with the County Attorney in the form provided
in A.R.S. § 23-722.01 identifying all new employees hired in the location where the
unauthorized alien performed work.
5.
Permanent License Revocation for Second Violations.
If an employer commits a second violation during a probationary period, the employer’s
business licenses applicable to that business entity will be permanently revoked. For a business,
this is the equivalent of capital punishment. A violation cannot be considered a second violation
unless it occurred while the Company was on probation for a first violation.
6.
Violators Will Be Identified on the Attorney General’s Website.
LAWA requires the Attorney General to post on its website the employers who have
violated the law, and copies of the court orders finding a violation.
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G.
The Defense That Employers Are Not Required to Violate Other Laws.
LAWA specifically states that it shall not be construed to require an employer to take an
action that the employer, in good faith, believes would violate federal or state law. For example,
theoretically an employer would not be required to refuse to hire a person if it believes that
rejecting the person would violate laws prohibiting discrimination based on national origin or
citizenship status.
H.
"Entrapment" Defense.
Under a provision of LAWA that was added by SB1070 in 2010, an employer may argue
as an affirmative defense to charges of violating LAWA that the employer was entrapped. To
succeed with the entrapment defense, an employer must prove:

The idea of committing a violation (knowingly or intentionally hiring an
unauthorized worker) began with law enforcement officers or their agents;

The law enforcement officers or their agents "urged and induced" the
employer to commit the violation; and

The employer was not predisposed to commit the violation.
It was not entrapment for law enforcement officers or their agents to use a ruse or conceal
their identity. It is not entrapment if the law enforcement agents merely present the employer
with the opportunity to violate LAWA and the employer was already predisposed to act. The
employer bears the burden of proving entrapment.
I.
Mandatory Use of the E-Verify Program and Defenses for Employers.
Under LAWA, effective January 1, 2008, every employer in Arizona is required to use
the federal E-Verify program to verify the employment eligibility of all newly hired employees.
If an employer proves that it used E-Verify to verify the employment eligibility of a worker who
is later determined to be an unauthorized worker, the employer is entitled to rebuttable
presumption for the individual at issue that the company did not knowingly or intentionally
employ an unauthorized worker. In addition, employers also have an affirmative defense to a
violation if they can show that it, in good faith, they followed the federal I-9 employment
verification process. Employers also have a good faith defense if they can show a good faith
attempt to comply with the I-9 requirements and that the violation was “isolated, sporadic or
accidental, technical or procedural failure.”
E-Verify is a federal program jointly operated by the Social Security Administration
("SSA") and the Department of Homeland Security ("DHS"). Computer and internet access is
required to use E-Verify. E-Verify can only be used with new hires. E-verify cannot be used
with existing employees or as a screening tool prior to hiring an employee.
Employers are still required to complete the Form I-9 within three business days from the
date of hire. After hiring the employee and completing the I-9, and if the employee completes
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the I-9 verification process, then the I-9 information is entered into E-Verify and the company
should follow the steps for confirmation or tentative nonconfirmation.
Employers can register for E-verify online at https://e-verify.uscis.gov/enroll. Employers
are required to sign a Memorandum of Understanding and follow the program requirements.
J.
Voluntary Employer-Enhanced Compliance Program.
The amendments to LAWA, passed in April 2008, created a new defense to sanctions
under LAWA. If an employer enrolls in the voluntary program and follows all of its
requirements, an employer will not be found liable for a LAWA violation upon a showing that
the employee named in the complaint had been verified through E-Verify or the Social Security
Number Verification Service (“SSNVS”). The voluntary employer enhanced compliance
program requires employers (1) to use E-Verify for all newly hired employees, (2) for all
existing employees not verified through E-Verify to verify the employee’s Social Security
numbers through the SSNVS and resolve any discrepancies within 90 days, if possible (more
time is permitted as long as the employer can show proof of good faith efforts by the employee
to resolve the discrepancy); and (3) upon request of Attorney General or County Attorney stating
the name of an employee about whom they have received a complaint, provide documents
proving the employee was verified through E-Verify or the SSNVS. Employers are required to
file a sworn affidavit with the Attorney General that they agree to perform all the foregoing
actions “in good faith” in order to enroll in the voluntary program.
The SSNVS clearly states that employers should not take adverse employment action
against employees based on a Social Security number “no-match” communication. The
availability of this defense is dependent on both the employer and employee being able to
document ongoing good-faith efforts to resolve the discrepancy. This provision places the
employer’s defense in the hands of the employee. Further, because of privacy laws, the
employer cannot control what occurs between the Social Security Administration and the
employee. The SSNVS is not designed for immigration compliance and is not an accurate tool
for immigration compliance. The SSNVS, and limitations on its use, are discussed more fully
later in these materials.
K.
Penalties for Paying Cash and Not Following Other Employment Laws.
HB 2745, the amendments to LAWA, provides additional penalties for employers of two
or more persons who pay their employees in cash and fail to comply with all of the following:
tax withholdings, workers’ compensation coverage, unemployment insurance, and new hire
reporting requirements. A.R.S. § 23-361.01. Violations are a penalty that is triple the amount of
all withholdings, payments, contributions or premiums that the employer failed to pay, or $5,000
for each employee, whichever is greater.
L.
Extension of LAWA to Contractors’ Hiring Practices, but Exclusion of
Independent Contractor Relationship from Definition of Employee.
HB 2745 makes several changes to the language of LAWA regarding employment and
independent contractor relationships. The new language is both somewhat ambiguous and
contradictory. The amendment changes the definition of “employee” in a way that deletes
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references to an employment relationship and expands it to include persons who provide
“services” for “other remuneration.” The language is deliberately broader than those who
provide “labor” for “wages.” This new language might be interpreted to expand coverage to
independent contractors, not just employees, but the definition of “employ” is changed to state
that it “does not include an independent contractor.” A.R.S. § 23-211(3)(b)
Other portions of the amendments reinforce that the definition of “employer” in LAWA
does not include independent contractors. A.R.S. § 23-211(2)(b); 23-211(3) and (5). LAWA
now also includes a non-exclusive list of seven factors for determining whether persons are
independent contractors or employees. Those seven factors are not the only factors utilized
under common law or federal or state statutes. The trend in the law has been to try to make the
concepts of employee and independent contractor uniform among the various laws, such as
workers compensation, unemployment insurance, income tax withholding, and other
employment regulatory laws. The new amendments create a potential inconsistency in which a
worker might be considered an employee under LAWA but considered an independent
contractor under other laws. That, of course would put employers in an untenable position.
Contradicting the exclusion of independent contractors described above, the law now also
states that employers violate the law and may have their business licenses revoked if the
employer “knowingly contracts to obtain the labor of an unauthorized alien or with a person who
employs or contracts with an unauthorized alien to perform the labor.” A.R.S. § 23-212(A).
That is a huge expansion of LAWA and is at odds with the definition of employer that purports
to exclude independent contractors.
Under the above provisions, Arizona businesses could lose their licenses based on the
hiring practices of the persons or companies with whom they contract i.e., the “first-tier
contractors,” and the subcontractors or service providers to the first-tier contractors. For
example, some vendors who might fall under this analysis could include cleaning companies
used at a company’s offices, caterer of food, messenger services, temporary or leased
employment agencies, subcontractors, etc.
M.
Verification of Immigration Status for Issuance of Licenses.
LAWA includes a provision that state and local governments must determine whether a
person is an unauthorized alien before issuing a license. A.R.S. § 41-1080. That provision
closes what the advocates of the law had described as a loophole. For example, to renew a
pesticide license, the state has already started using a new form and identified documents that a
person must provide to prove legal status.
N.
E-Verify Requirement for Government Contractors and Grant Recipients.
After the April, 2008 amendments, LAWA now requires that employers must participate
in the E-Verify program in order to be eligible to receive any economic development incentive
from a state or local government. A.R.S. § 23-214(B).
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O.
Disclosure of Businesses Enrolled in E-Verify.
HB 2745 requires the Attorney General to request from the United States Department of
Homeland Security every three months a list of employers who have registered to use the EVerify Program. The Attorney General must also post the list on its website. A.R.S. § 23214(C). Businesses that are not enrolled in the E-Verify Program may find themselves targeted
as a result of the fact that they are not named as enrollees on the Attorney General’s website.
P.
Prohibition Against Knowingly Accepting Identity Of Another Person In
Hiring Employee.
LAWA amends the State’s identity theft law to make it easier to prosecute individuals
using a false identity or false personal information to gain employment. Employers can expect
more police inquiries relating to employees who may have used an erroneous social security
number or name.
Additionally, the amendments to LAWA make it a Class 4 felony for a person to accept
the identifying information of another person from an individual knowing that the individual is
not the actual person identified by the information and using the information for employment
verification procedures. Employer representatives who accept documents knowing that the
documents do not properly belong to the individual, if convicted, could be sentenced to 2-1/2
years in prison or a fine of up to $150,000. For purposes of this provision, knowing requires
actual knowledge.
Q.
Issues and Strategies for Employers.
Employers should implement a comprehensive strategy to recruit and hire workers in a
way that documents their compliance with employment immigration laws. I-9 and immigration
training for hiring personnel is critical in order to be able to demonstrate that the employer did
not knowingly or intentionally hire undocumented workers. Companies should conduct I-9
audits. Employers will have to walk a tightrope between the immigration laws and
discrimination laws. Employers cannot engage in discrimination when trying to implement
immigration compliance strategies and must avoid conducting investigations based on race,
national origin, or a foreign appearance or accent.
Employers should train their personnel how to deal with inquiries and complaints about
immigration status that may be directed at the employer a large and, under the new law, a
growing list of government agencies, including federal immigration authorities, the Attorney
General’s office, County Attorneys, local law enforcement, the Department of Economic
Security, city agencies, licensing agencies, and more.
The capital punishment of license suspension or revocation is particularly problematic.
Because the revocation applies first to those licenses specific to the business location where the
unauthorized worker performed services, it would be beneficial for businesses to have a license
of some sort specific to each business location. Companies will need to consider the
implications of the possible loss of business licenses not only for themselves, but for vendors in
their supply chain and for their customers. Arizona businesses will be at risk that they, their local
suppliers, or their customers can be shut down if hiring personnel do not follow proper
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602.322.4046
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procedures in hiring workers. The challenge of obtaining a sufficient supply of qualified workers
will also be more formidable.
The enforcement of LAWA will also be complicated by the shifting landscape of federal
immigration laws. Congress is expected to eventually address comprehensive immigration
reform, and those changes could affect the State’s enforcement practices. In the meantime, many
states are looking at following the Arizona experiment to enact employer sanctions law.
R.
Prohibition Against MCSO Arresting Employees for “Conspiring” With
Employers to Violate LAWA.
When LAWA passed, the Maricopa County Sheriff’s Office conducted numerous “raids”
on employers, in which MCSO arrested employees suspected of being in the United States
unlawfully. In a recent decision in Melendres v. Arpaio, a case in which Sheriff Arpaio and
MCSO were sued for racial profiling and civil rights violations, the Judge issued an injunction
prohibiting MSCO from “detaining, arresting or holding persons based on a reasonable suspicion
that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.”
PHX-CV-07-02513-GMS (D. Ariz. May 24, 2013).
IV.
CONCLUSION.
Several states have proposed legislation that would impose penalties on employers who
knowingly employ unauthorized workers. The existing laws and proposed laws take three major
approaches: (1) attacking companies’ business licenses, (2) requiring E-Verify for public
contractors or all employers, and (3) creating a private right of action for terminated employees
against an employer who has retained unauthorized workers. In addition, states are enhancing
their criminal laws and employers may face criminal liability for transporting an unauthorized
alien, harboring an unauthorized alien, or aiding a felony. Employers need to ensure that they
are familiar with the state immigration laws in the states in which they operate. Companies
should also make sure to train their employees on the applicable state immigration laws, as well
as federal immigration laws.
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Julie A. Pace
602.322.4046
[email protected]
THE NEW ICE IMAGE PROGRAM
BY
DAVID A. SELDEN
JULIE A. PACE
THE CAVANAGH LAW FIRM PA
I.
INTRODUCTION.
IMAGE, which stands for ICE Mutual Agreement Between Government and Employers,
is an initiative launched by the U.S. Immigration and Customs Enforcement (ICE) on July 26,
2006, to help employers build and maintain a “legal workforce.” The goal of the program is to
“assist employers in targeted sectors to develop a more secure and stable workforce and to
enhance fraudulent document awareness through education and training.”
II.
NEW STREAMLINED IMAGE CERTIFICATION PROCESS
The original IMAGE program was not as successful since it was not utilized by very
many employers. ICE reviewed the business community's concerns regarding why businesses
were not using the Image program. ICE determined that there was essentially no incentive for an
employer to participate in IMAGE. Therefore, ICE revised the program and rolled out a new
IMAGE program in the Spring of 2011.
The old IMAGE program required that an employer follow twelve (12) "best practices" in
order to become IMAGE certified. The new IMAGE program now has three requirements:
1.
Enroll in the E-Verify program within 60 days;
2.
Establish a written hiring and employment eligibility verification policy
that includes internal Form I-9 audits at least once per year; and
3.
Submit to a Form I-9 inspection by ICE.
The remaining nine best practices from the old IMAGE program are recommendations,
but they are no longer required for IMAGE members.
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1.
Use the Social Security Number Verification Services (SSNVS) for wage
reporting purposes. Make a good faith effort to correct and verify the
names and Social Security numbers of the current workforce and work
with employees to resolve any discrepancies;
2.
Establish an internal training program on the hiring process, with annual
updates, i.e., on how to manage completion of Form I-9 (Employment
Eligibility Verification Form) and on how to detect the fraudulent use of
documents in the I-9 process, and cooperate with ICE to make employees
available for ICE training sessions as deemed appropriate;
3.
Require that Form I-9 and E-Verify process to be conducted only by
individuals who have received this training, and include a secondary
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review as part of each employee’s verification, to minimize the potential
for a single individual to subvert the process;
4.
Establish a procedure to report to ICE credible information of suspected
criminal misconduct in the employment eligibility verification process
(i.e., self-report);
5.
Establish a tip line mechanism (inbox, e-mail, etc.) for employees to report
activity relating to the employment of unauthorized aliens, and a protocol
for responding to employee tips;
6.
Establish and maintain appropriate policies, practices, and safeguards
against use of the verification process for unlawful discrimination, and to
ensure that U.S. citizens and authorized workers do not face
discrimination with respect to hiring, firing, or recruitment or referral for a
fee because of citizenship status or national origin;
7.
Ensure and document the definitive resolution of no-match letters received
from the Social Security Administration (SSA), per SSA and DHS
guidance;
8.
Communicate IMAGE guidelines to other companies in the hiring
network
(such
as
employment
services/agencies)
and
contractors/subcontractors. Work toward incorporating IMAGE guidelines
into relationships and agreements with these companies and establish a
protocol for assessing the adherence to the Best Practices guidelines by the
company’s contractors/subcontractors; and
9.
Maintain copies of any documents accepted as proof of identity and/or
employment authorization for all new hires.
Some of these nine remaining “best hiring practices” are good practices that legal counsel
often recommend implementing. For example, it is advisable to provide I-9 training to all
employees who will be completing I-9s on behalf of the company. The company should do
regular self-audits, and it is recommended to have an external audit conducted every few years.
However, items 4 and 5 above are fraught with other problems and companies likely will not
implement Items 4 and 5. Also, companies should develop a protocol for responding to nomatch letters from the SSA. Companies should take some action in response to the letters, rather
than just ignoring them.
There are other "best practices," however, that are not necessarily recommended. For
example, there are many potential problems with establishing an employee tip line regarding
immigration compliance or being compelled to define and report criminal activity to ICE. Thus,
it is recommended that IMAGE employers seek legal counsel regarding whether to implement
any non-required best practices.
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602.322.4046
[email protected]
III.
BENEFITS OF THE NEW IMAGE PROGRAM
A big problem with the old IMAGE program was that employers were provided with no
safe harbor or immunity even if they participated in the program. In fact, the old IMAGE
program required that IMAGE participants self-report their own errors, in turn opening up
participating employers to civil and criminal penalties.
ICE's new IMAGE program has made great strides by providing employers a more
reasonable choice. Under the new system, IMAGE participants get several benefits from ICE:
1.
ICE will waive potential fines if substantive violations are discovered on
fewer than 50 percent of the required Forms I-9;
2.
In instances where more than 50 percent of the I-9 forms contain
substantive violations, ICE will mitigate fines or issue at the statutory
minimum of $110 per violation;
3.
ICE will not conduct another Form I-9 inspection of the employer for a
two-year period; and
4.
ICE will provide information and training before, during, and after the
inspection.
Companies who want to register for the new IMAGE program are also provided a
reasonable time to submit I-9 forms. Prior to submitting I-9 forms to ICE, a company should
consult with legal counsel and have the company's I-9 forms audited. Any errors or missing
information should be addressed, if possible prior to submitting I-9 forms to ICE.
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Julie A. Pace
602.322.4046
[email protected]
THE SSA NO MATCH LETTER
BY
JULIE A. PACE
DAVID A. SELDEN
HEIDI NUNN-GILMAN
THE CAVANAGH LAW FIRM PA
I.
INTRODUCTION
Trapped between inaccurate employee reporting and confusing federal regulations,
contractors struggle to comply with the differing requirements of governmental agencies without
violating anti-discrimination laws.
For example, when a contractor receives a “Request for Employer Information”
(otherwise known as a “Mismatch” or “No-Match” letter) from the Social Security
Administration (“SSA”), it can impact the contractor’s compliance with the rules and regulations
of other government agencies, especially if the contractor crosses the line between verification
and discrimination.
Before we look at the SSA No Match Letter and the I-9 form, we need to identify the
agencies involved:
the Department of Homeland Security Immigration and Customs
Enforcement (ICE); the U.S. Office of Special Counsel, Civil Rights Division, Department of
Justice (OSC); the SSA; and the IRS.
II.
THE GOVERNMENT AGENCIES
A.
ICE
Formerly known as the Immigration and Naturalization Service (INS), ICE enforces
compliance with the Immigration Reform and Control Act of 1986 and the Immigration Act of
1990 (collectively “IRCA”). As a result of this legislation, employers must verify that each of
their employees is authorized to work in this country.
IRCA, however, also subjects employers to severe sanctions if they discriminate against
current or prospective employees on the basis of national origin or citizenship.
Therefore, companies must walk a fine line between verification and discrimination.
Remarkably, despite the potential for substantial liability under IRCA, the government estimates
that many companies are unaware of its provisions.
B.
The OSC
The OSC is empowered to investigate and prosecute companies charged with
discrimination based on national origin and citizenship status, as well as document abuse and
retaliation under various anti-discrimination provisions.
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C.
The SSA
The SSA receives funds for distribution into employees’ earnings records – earnings that
will eventually be paid out under one of the many programs administered by the SSA.
Thus, having correct social security numbers (SSNs) is vital; those most directly harmed
by failure to provide the correct information are the employees who are not building their
earnings records.
D.
The IRS
Responsible for administering the nation’s tax program, the IRS reported a budget of
$12.5 billion in 2010.
III.
REPORTING EMPLOYEE IDENTITY & STATUS
A.
The I-9 Form
IRCA requires contractors to verify the identity and work authorization of every
employee. The employment verification process must be documented with an I-9 form for every
person the Company hires, regardless of the person’s purported or apparent citizenship.
To complete this form, the Company must review all of the original unexpired documents
presented by the employee and verify the employee’s identity and employability. On the I-9, the
Company must list certain information about the documents presented by the employee
(including title, issuing authority, number, and expiration date, if any).
The Company must also state the date employment begins. The Form I-9 must be
completed after the offer of employment, and generally within three business days after the
employee begins work.
If any of the documents demonstrating authorized status expire during employment, the
Company must generally update the I-9 by the expiration date of the document; exceptions to
this rule include driver’s licenses, U.S. passports, and permanent resident alien cards.
B.
One I-9 Trap: Documentation
There are three types of documents that can be used to demonstrate status: Documents
that Establish Both Identity and Employment Eligibility, Documents that Establish Identity, and
Documents that Establish Employment Eligibility.
The reverse side of the I-9 form has a complete list of acceptable documents, and the
employee selects which documents to provide.
As long as the documents appear genuine and reasonable, a company cannot require the
employee to produce additional or different documents. Thus, a company cannot require an
employee to provide a Social Security card as part of the I-9 verification process unless the
employee chooses to do so.
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[email protected]
Such a requirement on the part of the company could violate multiple anti-discrimination
provisions, including the Civil Rights Act of 1964 (which protects employees from
discrimination on the basis of national origin).
Remember that IRCA was only enacted in 1990. Therefore, while the IRS has authorized
employees to provide their Social Security cards to employers, companies must keep in mind
that other laws may prohibit that action if it is deemed to be discriminatory.
C.
Another I-9 Trap: Archiving
Companies must also keep I-9s for all current employees. After an employee has
resigned or is terminated from the company, the length of time after separation the company
must keep the I-9 depends on the duration of employment. An easy way to make sure the
Company is in compliance with the retention of I-9 forms is to abide by the following rule:
1. Enter date employee started work: ___________________
Add 3 years to Line 1.
A. ___________
Add 1 year to Line 2
B. ____________
2. Termination date:____________
Which date is later: A or B? Enter later date here.
C. _____________
Store Form I-9 until
this date.
Many contractors photocopy the original documents presented by the employee and
attach the copies to the I-9, even though they are not required to do so. Ironically, keeping such
photocopies can lead to increased fines and liability.
Here’s how: If ICE investigates the contractor and examines copies of the documents
previously reviewed by company personnel, the investigator has a chance to second-guess
whether or not the documents appear genuine and reasonable. This reassessment provides the
ICE with the opportunity to impose higher (and additional) fines.
Thus, it is better to properly complete the I-9 than to photocopy documents. During the
proper completion of the I-9, the company verifies that it has reviewed the documents submitted
by the employee and that the documents reasonably appear to be genuine.
X.
REPORTING FEDERAL WAGES
A.
The W-2 Form
The IRS instructs companies to file W-2s (Wage and Tax Statements) with the SSA,
which processes them to update employees’ SSA earnings and IRS tax records. If there is an
error in the form, SSA identifies those errors and alerts the IRS for follow-up.
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602.322.4046
[email protected]
The IRS has delegated the responsibility of obtaining and processing W-2s to the SSA. It
is under this delegation that the IRS retains the ability to impose penalties for errors generated by
contractors who submit incorrect W-2s.
B.
The W-4 Form
Every company has the responsibility to deduct and withhold taxes from wages as
dictated under the Internal Revenue Code, IRC 26 U.S.C. § 3402. In order for the contractor to
know the amount of wages to deduct and withhold, every employee must complete a signed W-4
(Employee’s Withholding Allowance Certificate) on or before employment begins. The W-4
details the number of exemptions claimed, which in no event can exceed the number to which
the employee is entitled.
If the employee does not provide the Company with the W-4, the employee is considered
a single person with zero withholding exemptions.
XI.
SSA NO MATCH LETTERS
An IRS regulation enacted in 1960 (and amended in 1962) states that employees should
show their Social Security cards to the hiring Company; if they do not have their cards available,
but know their SSNs and names exactly as shown on their cards, they can advise the Company of
their SSNs.
However, if a Company does not supply accurate or complete information to the SSA, the
SSA has the authority to contact both the employee and the Company requesting either the
corrected or missing information.
If an employer sends in a report that contains an employee’s wages, but with a different
name or SSN than shown in the SSA’s records, the SSA is supposed to write the employee
(rather than the employer) at the address shown on the wage report and request the missing or
corrected information.
On the other hand, if the wage report does not show an employee address or has an
incomplete address, the SSA will often write to the employer and request the missing or
corrected employee information.
A.
Consequences
A person may be subject to civil and/or criminal penalties, including fines and up to five
years in prison, for furnishing false information in connection with an earnings record. For the
penalties to apply, there must be an intent to deceive with respect to furnishing false SSNs to the
SSA.
The SSA has no independent authority to force a Company to respond to the No Match
letter. Reporting the Company to the IRS for failing to file correct information is the only
enforcement action the SSA possesses under the regulations.
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The SSA informs the IRS of all wage reports filed without proper employee SSNs so that
it may determine whether to assess penalties for erroneous filings.
In addition, when an employee or Company fails to provide the missing or corrected
information, those earnings are deposited into the “Earnings Suspense File” of uncredited
earnings. It is currently estimated that the SSA has more than $500 billion in the Earnings
Suspense File.
B.
Dealing with No Match Letters
It is important to note that all of the notices sent by the SSA stress that the Company is
not to take adverse employment action against the individual based on the No Match letter alone.
Thus, it is clear that the SSA realizes the delicate situation that contractors face when receiving a
No Match letter.
1.
Send Solicitation Letters
Upon receiving notice from the SSA of a no match, a Company should send a letter to the
employee, as described in the following IRS regulations. At a minimum, the mail solicitation
must include:
(a)
A letter informing the employee that he must provide his Taxpayer
Identification Number (TIN) and that he is subject to a $50 penalty
imposed by the IRS under 26 U.S.C. §6723 if he fails to furnish the TIN.
(b)
A W-9 on which the employee must provide his TIN.
(c)
A return envelope for the employee to return the W-9 to the filer which
may be (but is not required to be) postage pre-paid.
Also, the Company should keep copies of all correspondence sent to employees
(including a copy of the return envelope).
By taking these steps in response to the first two SSA No Match Letters, the Company
should be able to establish that it acted in a responsible manner when notified of the incorrect
information.
2.
Consider the W-9 Form
When an employee completes a W-9 (Request for Taxpayer Identification Number and
Certification), the Company has additional proof that reasonable steps were taken to solicit the
correct name and SSN.
The W-9 allows companies to rely on the SSN provided by the employee under penalty
of perjury and, as such, should be helpful to defend against penalties assessed by the IRS.
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3.
The W-4: An IRS Recommendation
The IRS has indicated that a Company should re-solicit the information from the
employee in response to an SSA No Match Letter on the employee’s W-4 form. If the
“employee fails to make the correction, then the contractor is required to withhold from the
employee’s wages as if they (sic) had filed a W-4 claiming single with zero exemptions.”
C.
The Penalties and Waivers
A Company could be subject to penalty of $50 for the inclusion of incorrect information
on any information return. (Even if there are multiple errors, only one penalty per return is
assessed.)
The penalty amount for all failures during any calendar year shall not exceed $250,000.
An employee can also be subject to a fine of $50 for failure to furnish his TIN to another person.
There is a reduction in the penalty if the correction is made within specified time frames or is
considered de minimis.
The Company may be able to obtain a waiver from a penalty if the failure is due to
“reasonable cause,” rather than willful neglect; however, the Company must show that it acted in
a responsible manner both before and after the no match occurred. (Note that there are special
rules for companies requesting a waiver of penalties because of an error that was attributable to
the individual supplying the SSN or TIN.)
D.
Conclusion
It is clear to anyone involved in this area of law that confusion exists among companies –
and even the agencies themselves – on how to comply with the SSA’s directives regarding No
Match letters without violating multiple anti-discrimination rules and regulations.
Thus, it is important to understand the purpose of each government agency and how they
accomplish those purposes through the use of specific regulations or policies before deciding
how to respond to any no match letter.
E.
SSA No Match Checklist
Compare employment records to the W-2 forms submitted to the SSA to ensure that there
were no typographical errors.
1.
If the employment records do not match, use form W-2c to submit corrections to
the SSA.
2.
Ask employees to check their W-2s against their Social Security cards and to
inform the company of any name or SSN differences.
3.
Direct an employee who has been identified as having a no matched SSN to
contact the SSA to resolve the issue.
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4.
Issue annual reminders to all employees to report any name changes that have
occurred because of marriage, divorce, etc. to the SSA.
5.
Complete the mail solicitations to all employees identified in No Match letters.
6.
Have employees complete a W-9 verifying that their SSN is correct under penalty
of perjury.
7.
Ensure that a valid W-4 is on file for each employee.
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Julie A. Pace
602.322.4046
[email protected]
STRATEGIES FOR IMMIGRATION COMPLIANCE
AND PROTECTING YOUR COMPANY
BY
JULIE A. PACE
DAVID A. SELDEN
HEIDI NUNN-GILMAN
THE CAVANAGH LAW FIRM PA
Companies need to be proactive and have procedures in place to help protect the
company against charges that it knowingly or intentionally employed an unauthorized alien. The
following are some issues and strategies to consider implementing as part of an overall strategy
to avoid or defend against claims that the company is knowingly or intentionally employing an
unauthorized alien. Companies should adopt comprehensive strategies that demonstrate the
company’s commitment to complying with the laws and the due diligence it takes with regards to
its own employees and the employees of companies it contracts with and that shows the
company has taken appropriate action regarding employment eligibility issues.
I.
IMPORTANCE OF ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY
WORK PRODUCT PROTECTION
It is more important for companies who want to avoid being found to have knowingly or
intentionally employed an unauthorized worker, and the civil and criminal penalties that may be
imposed, to integrate the benefits of the attorney-client and attorney work product privilege
regarding matters of identity theft or Social Security no-match issues. It is very important for
companies to consider these privileges to protect their companies and their employees from
being targeted and prosecuted.
II.
1.
Companies may want to have legal counsel be the liaison between the company
and government agents, police officers, or prosecutors, rather than a company
employee or manager acting as liaison or writing and signing letters. If a
company employee acts as the liaison or writes letters, the employee might then
be named in a subpoena or named for prosecution. Steps should be taken to
protect the company and its employees and still exhibit cooperation with law
enforcement. Many companies today are outsourcing responsibility regarding
request for personnel data relating to identity issues to lawyers to handle.
2.
It is also important to have a legal team that includes not only employment
attorneys to handle inquiries about personnel data from ICE, the SSA, the State
Attorney General, or a County Attorney’s office, but also white collar criminal
attorneys and corporate attorneys who may be needed as part of the team to
implement some of the strategies and defenses to assist in defending IRCA
prosecutions.
I-9 AND IMMIGRATION COMPLIANCE.
Federal law requires employers to verify the employment eligibility of all employees
within three (3) business days after the employee begins work by using the Form I-9.
Regulations technically require the employee to complete Section 1 of the I-9 on the first day of
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[email protected]
employment, but the employer has three (3) business days to complete the Form I-9. It is
essential to have a complete Form I-9 for every employee, both because good faith compliance
with the I-9 process can provide an affirmative defense if the employer is charged with
knowingly employing an undocumented worker and because failure to properly complete a Form
I-9 may result in monetary fines being imposed on the company.
There are several steps a company can take to help ensure that it complies with the
federal I-9 requirements and to help build a defense if the company is ever charged with
knowingly employing an unauthorized worker. These are increasingly important in Arizona
under the LAWA amendments, which provide a good-faith defense if an employer complies in
good faith with the I-9 requirements notwithstanding “isolated, sporadic or accidental technical
or procedural violations” of the I-9 requirements.
III.
1.
Print the Company’s current payroll register. Complete an audit of every
employee’s I-9 form to make sure that the company has complete I-9s for every
employee. If the company does not have an I-9 form or the I-9 form is
incomplete, complete another I-9 and staple it to the original I-9. Do not backdate
the I-9. Use the original hire date in Section 2.
2.
Conduct I-9 and immigration compliance training for all employees that complete
an I-9 on behalf of the company (Section 2 of the I-9). Train employees regarding
what they may and may not do when completing the I-9 form on behalf of the
company and what to look for to ensure that the I-9 is fully complete.
3.
Weigh the advantages and disadvantages of electronically completing the Form I9. There are processes available to have employees electronically complete and
sign the Form I-9. However, using this system has drawbacks if the Form I-9 is
ever audited and the information on the form is questioned. It may be better,
especially in high-risk industries, to have the employee complete Section 1 in the
employee’s own handwriting, which could later be verified to demonstrate that
the employee provided the information. It is a business choice whether to
complete the forms electronically or by hand, but requiring that the employee
complete Section 1 in his or her own handwriting may have benefits if the
company ever needs to defend itself.
ACTIONS AND DOCUMENTATION TO BOLSTER DEFENSES TO ALLEGED
VIOLATIONS OF THE LEGAL ARIZONA WORKERS ACT.
The Legal Arizona Workers Act greatly increases the risks to employers for their
immigration hiring compliance. The penalties are now the equivalent of “capital punishment”
for any business because businesses cannot survive the suspension or revocation of their licenses
and permits. All of the procedures that employers have implemented to ensure compliance with
the I-9 process must be emphasized, scrupulously followed, and documented. Employers should
discipline employees who cut corners in hiring practices so that if someone has failed to follow
proper procedures, the business will be in a better position to contend that it did not knowingly or
intentionally hire an unauthorized person because its policies prohibit doing so and it enforces
and disciplines employees who fail to comply with those policies.
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The Legal Arizona Workers Act contains a defense that the Act does not require an
employer to take any actions that would violate state or federal law. Accordingly, employers
should be ready to assert that defense and should prepare documentation to put them in a better
position to assert the defense. Employers should emphasize their equal employment opportunity
policies so that they may point to the EEO policies as part of their defense to allegations of
immigration violations. In addition, if an employer declines to take follow-up action upon
information alleging an immigration issue, the employer should document that it did not take
action because doing so would violate EEO laws. For example, if someone reports to an
employer an allegation that an employee is not authorized to work in this country, either
expressly or apparently based upon a person’s race, national origin, accent, language ability, or
manner of dress, the employer should document that it could not take action based upon such
complaint because the employer has a good faith belief that to do so would violate discrimination
laws.
A problem in this area, however, is that for small employers, those with fewer than 15
employees, they are not covered by federal or state discrimination laws and the good faith nondiscrimination defense enacted as part of the Legal Arizona Workers Act is not available to very
small businesses. The perverse effect of the Act, therefore, is that the smallest of businesses
have the fewest defenses available to them.
IV.
ANTICIPATE AND DEAL WITH COMPLAINTS OR INQUIRIES REGARDING
IMMIGRATION STATUS.
There are immigration vigilantes in the form of members of the public who are motivated
and empowered to make complaints to the Attorney General or County Attorneys regarding
persons who are suspected of not being authorized to work in this country. Businesses that are
vulnerable to such complaints, which include businesses that serve the public or that have a
diverse work force that is visible to the public, may consider public relations and customer
relations strategies for anticipating and dealing with the expected inquiries or complaints by the
public regarding the alleged immigration status of the business’s employees.
Customer service personnel should be trained to respond to inquiries or complaints by the
public politely but firmly to inform members of the public that the company takes its obligations
to comply with immigration laws very seriously, that it checks all documentation upon hire, and
that it does everything that the law allows the company to do in checking to make sure that
proper documentation is presented to the company upon hire, but that the company is prohibited
by law from taking more stringent actions against people based upon the way they look, dress,
their last name, or other characteristics that appear foreign.
Companies may want to consider removing the names of employees from their uniforms
or name badges in order to make it more difficult for members of the public to make complaints
about employees who appear foreign. A person will be less likely to make a complaint and it
will be more difficult for the Attorney General or County Attorney to investigate a complaint
about a worker when the member of the public does not know the name of the worker.
Obviously this could have an adverse effect on customer service because a nameless worker is
less accountable for the quality of service. However, most companies should still be able to react
to any customer service complaints that occur by asking the customer to identify the worker from
whom they receive less than satisfactory performance.
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[email protected]
V.
RESPONDING TO GOVERNMENT INQUIRIES.
Companies should have procedures in place to respond to government investigations or
inquiries from government agencies or others regarding employees or employees’ social security
numbers. The procedures should also address investigations by the County Attorney or State
Attorney General initiated by a complaint that the company is knowingly or intentionally
employing an unauthorized alien. For those states that enact employer sanctions laws, employers
may expect many more visits from government agents asking questions or demanding to inspect
records about employees.
A memo on responding to government investigations is included in the Appendix.
Company managers should be cautious about the manner in which confidential personnel
information is disclosed and most companies understand that they generally should not provide
confidential personnel information about the company or its employees, but rather to refer
inquiries to a designated company representative. Front-line employees can tell investigators or
others that the Company is happy to cooperate, but that the employee is not the proper person to
handle the inquiry and will refer it to the appropriate person or the Company’s attorney.
VI.
PROCEDURES FOR HR INVESTIGATIONS INTO IDENTITY ISSUES.
Companies should develop and implement procedures to address identity issues.
Companies need to have a procedure that is followed in all cases for two reasons: (1) to defend
against charges that the company knowingly or intentionally employed an unauthorized alien by
showing that the company is taking reasonable steps when it learns information that could
suggest an employee is using false personal information and may not be authorized to work in
the United States and (2) to defend against charges of discriminatory treatment by demonstrating
that all employees are treated the same and in accordance with a pre-established policy.
The policy should contain provisions prohibiting discrimination based on national origin,
race, ethnicity, appearance, language skills, and other protected characteristics.
VII.
EMPLOYMENT POLICIES AND HIRING PAPERWORK.
1.
Use new hire acknowledgement forms where the employee affirms he or she
understands the company’s commitment to employing only an authorized
workforce and that the employee is authorized to work in the United States. A
sample immigration compliance policy and employee acknowledgment form is
included in the Appendix.
2.
Make sure the company has a written immigration compliance policy.
Incorporate the policy into the company’s handbook if the company has one. If
the company does not have a handbook, it should consider distributing the policy
to employees as part of the new hire paperwork.
3.
The company’s employment application should include a statement to be signed
by the applicant affirming the accuracy of the information provided. For
example:
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[email protected]
I hereby state that all information that I provide on this
application and in any interview is true and accurate. I am
aware that false statements, misrepresentations of facts, or
material omissions may be sufficient to disqualify me for
employment, or if employed, may result in my termination.
4.
The company’s employment application should include a carefully worded
question regarding whether the individual is authorized to work in the United
States. Depending on how the inquiry is worded, it could be used as evidence of
discrimination. An employer may not ask about citizenship status. The question
“Are you legally eligible for employment in the United States?” or “Are you
authorized to work in the U.S.?” has thus far been found to be acceptable.
5.
The company’s employment application could include a statement, to be signed
by the applicant, which states, “If employed, I understand that I will be required
to provide proof of identity and legal work authorization.”
6.
Use the Form W-9 with all new hires and current employees. A form W-9 is
included in the Appendix.
7.
The company’s termination checklist should include as a possible reason for
termination “Failure to properly complete a Form I-9.” Another reason for
separation could be “Providing false information to the Company in violation of
Company policy, practices, and procedures.” This could be the grounds for
separation if after an investigation a company discovers that the employee
provided false information to complete the Form I-9 or as part of a follow-up HR
investigation.
VIII. EMPLOYEE TRAINING.
Companies should train their employees on the company’s immigration compliance
policy and highlight to all employees the seriousness with which the company treats employment
authorization matters.
1.
Train the managers and supervisors on the company’s immigration compliance
policy and what they should and should not do in interacting with employees and
dealing with immigration status. A talking points memo for managers and
supervisors is included in the Appendix.
2.
Supervisors and managers should understand that the company is committed to
legal employment practices and that as representatives of the company,
supervisors and managers have special duties regarding legal work status.
3.
Supervisors and managers should never discuss the immigration status or work
authorization of an employee, whether they are at work or off work, whether they
are speaking English or another language. Work authorization status is never a
permissible topic of discussion after the employee has completed an I-9 and
satisfied the federal employment authorization verification procedures.
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4.
IX.
All managers and employees should be told and understand that they should not
ever discuss the legal status of an employee working for the Company; this means
24 hours a day, seven days per week.
AVOIDING CHARGES OF DISCRIMINATION.
Federal law prohibits discrimination on the basis of race, national origin, and citizenship
status. Companies need to take care that they are not overzealous in verifying the identity and
work authorization of employees or the company may face a discrimination charge.
X.
1.
The company should ensure that it has a strong anti-harassment and antidiscrimination policy and that it implements the policy.
2.
The company should be very cautious of actions that could be construed as
national origin or citizenship discrimination or actions that could be construed as
violating the anti-discrimination provisions of the IRCA.
3.
Under current federal law, employers are prohibited from asking for more or
different documents if the documents that the employee provides to complete the
Form I-9 “on their face reasonably appear to be genuine.” 8 U.S.C. § 1324b(6).
4.
The company should ensure that it does not make decisions based on race,
national origin, language ability or characteristics, accent, physical appearance,
clothing characteristics of an ethnic group, religious attire, or other national origin
characteristics.
5.
If the Company enrolls in the voluntary employer-enhanced compliance under
LAWA, it should be rigorous about complying with the requirements and
limitations of the SSNVS.
RECORDS RETENTION POLICIES.
It is important for a company to review their records retention policies and makes sure
that the policy is being followed at all the company’s locations. If the company is under
government audit, it is restricted from destroying or eliminating documents. Similarly, if the
company is involved in a lawsuit, it has a duty to maintain the relevant documents and electronic
data.
The company’s record retention policy should cover a number of items, including but not
limited to I-9 forms, wage and hour records, leave records, social security no-match letters,
safety records, resumes, e-mail correspondence, other electronic data, and other personnel
information. Companies may want to consider having legal counsel review the records retention
policy.
As long as the company is not required to keep records because it is under a government
investigation or involved in litigation or potential litigation, the company should implement the
records retention policy and make sure that it is uniformly followed. Clean up old records.
Shred I-9 forms and other personnel records that the company is no longer required to keep.
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[email protected]
Keep in mind that documents containing personal and confidential information, such as
social security numbers, date of birth, home address, and medical information, must be disposed
of in a manner that will ensure it cannot be stolen and used. The company should shred
documents containing personal and confidential information or use a document service that can
provide those services.
XI.
USE OF LEASED EMPLOYEES, EMPLOYMENT AGENCIES, OR
OUTSOURCING WORK.
Companies could consider using third party leased or temporary employment agencies,
rather than hiring employees directly. The employment agency would become responsible for
verifying the work authorization of the employees it provides to a company. Under LAWA,
however, companies can still be liable if they use outsourced employees or independent
contractors knowing the workers are not authorized to work in the U.S.
XII.
1.
If the company decides to use a leased or temporary employee arrangement,
require a strongly-worded written agreement wherein the agency certifies its
compliance with federal and state laws relating to employment verification and
anti-discrimination.
2.
The contract the company has with the leased employee agency should contain a
clause where the agency agrees to indemnify the company against any liability
based on knowingly or intentionally employing an unauthorized alien.
3.
Make sure that the contract contains a clause requiring the agency to provide the
original I-9 forms for all employees within 72 hours in the event of a government
inspection or request for I-9 forms.
4.
Insert a clause in any contract that addresses what will happen if the agency is
found to have knowingly or intentionally employed an unauthorized alien and has
its license temporarily or permanently revoked.
5.
The company should check the Attorney General’s website to make sure that the
agency has not previously been found to have knowingly or intentionally
employed an unauthorized alien.
6.
Do not outsource work or hire subcontractors without a written contract and due
diligence about the company or subcontractor. Due diligence should include a
check of the Attorney General’s website to see if there are prior orders relating to
that company and the Legal Arizona Workers Act. The written contract should
contain provisions certifying that the Company complies with federal and state
laws relating to employment verification.
CONTRACT CONSIDERATIONS.
Any contract that the company enters into could be impacted by immigration issues if the
other party to the contract or the company were to have a license or permit suspended or
revoked. When entering into contracts, companies should consider what might happen if one
party to the contract has its license suspended or revoked.
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[email protected]
1.
Consider adding assignment provisions to all contracts allowing them to be
assigned to successor companies.
2.
Consider the effect of the immigration-related issues on contract provisions
regarding delays and penalties for delays, particularly in the construction industry.
Usually there is a provision in construction contracts and other contracts imposing
liability for delays on the company that does not perform or cannot meet
deadlines in the contract. Companies who have contracts that include delay
provisions may want to consider including an exception not only for acts of war,
acts of God, terrorist attacks, but also acts of the State that affect the company’s
ability to conduct business because of immigration-related issues.
3.
General contractors should consider adding a contract provision stating that the
subcontractor agrees to comply with federal and state immigration and
employment verification laws and will indemnify the general contractor for any
liability arising from any failure by the subcontractor’s to comply with the
applicable laws.
4.
Companies should insert provisions in all contracts, whenever possible, saying
that they are relieved from the obligation to perform or fulfill a contract if their
license is suspended or revoked because of immigration-related issues.
5.
All of the company’s employment contracts, handbooks, manuals and policies
should state that it shall immediately cease payment of any wages or the provision
of all employee benefits to any employees if the company’s licenses are
suspended or revoked. Such provisions are necessary so that the company does
not face claims that additional wages are owed or benefits must be provided
during a period when the company is not authorized to transact business because
of the enforcement proceedings under the Act. Payments for all time worked
must, of course, be made, and businesses should consult with an attorney to
ensure that they do not violate any Department of Labor regulations.
6.
Companies should examine all of their supplier and customer relationships and
attempt to negotiate provisions in contracts with their suppliers and customers
with respect to the consequences of a suspension or revocation of business
licenses or permits on the part of either the company, its vendors, or its customers.
Obviously companies will not be able to fulfill contractual obligations if they are
not authorized to do business because their business licenses or articles of
corporation have been suspended or revoked. Performance guarantees, security
interests, personal guarantees or other measures may be necessary to protect
companies from non-compliance due to the extremely harsh penalties under the
Act.
The above contractual provisions demonstrate the adverse impacts that can arise from the
Legal Arizona Workers Act, not only on a particular company that is found to be in violation, but
on all companies with whom that company does business. The Act could wreak havoc with the
Arizona economy because it could disrupt the supply chain, transportation network, and
customer base of Arizona companies. Moreover, when a company has its business license
suspended or revoked, all of the company’s employees will suffer.
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XIII. CORPORATE CONSIDERATIONS.
An overriding principle of corporate structures and transactions is that corporate actions
should be taken for legitimate business purposes and not to evade the law. If separate
corporations are formed to conduct different business operations, there should be a legitimate
business purpose for all corporate structures and transactions. All transactions between affiliated
companies should be arms-length and reasonable from the standpoint of all parties to the
transaction, and should be governed by the terms of written agreements.
The permanent revocation of any required license could effectively force the closure of
any business. To avoid this result, an employer whose business requires a license may want to
consider (a) utilizing a third party employee leasing company (discussed above), or (b) forming a
separate entity to employ the employees used in the operation of the business. In either case the
employees would then be leased to the operating entity. In the event the leasing entity's licenses
are revoked, the operating entity's licenses would remain in effect. The operating entity could
then contract with a different employee leasing entity or form a new entity to employ the
remaining employees and lease them back to the operating entity.
Companies should consider seeking a license of some sort for each location where the
Company conducts business. Under LAWA, the license revoked is any license specific to the
location where the undocumented worker was employed. Only if that location does not hold any
licenses will the licenses held by the main location of the business be suspended or revoked.
Under the Amendments to LAWA, passed in April 2008, the license does not have to be required
to operate at that location, only a license specific to the location. Therefore, a company can try
to protect its overall operating licenses by ensuring it has a license for each location, even if not
required to operate in that location.
If one desires to utilize an Arizona corporation for a replacement employee leasing entity,
after the revocation of the Articles of Incorporation of the first corporation, an impediment is the
disclosure required under A.R.S. § 10-202(D), which requires the delivery to the Arizona
Corporation Commission of a certificate of disclosure contemporaneously with the delivery to
the Commission of the articles of incorporation for approval. The certificate requires disclosure
if any person serving as an officer, director, incorporator or holder of over twenty percent of the
shares or other ownership interest has ever served in such capacities or held twenty percent
(20%) interest in any corporation whose charter has been revoked. An intentional untrue
statement on, or intentional withholding of a material fact from, a certificate of disclosure
constitutes a felony. If there is any common management or ownership requiring disclosure, the
Corporation Commission may decide not to accept the Articles of Incorporation for filing.
It would be preferable to utilize an entity formed outside of Arizona for an employee
leasing organization. While an Arizona entity’s Articles of Incorporation or organization would
be revoked upon a second violation of the new law, a foreign entity would only have its authority
to transact business in Arizona revoked as a result of twice violating the new law. The legal
existence of the foreign entity would remain in effect. Adverse consequences of revocation of a
corporation’s authority to transact business in Arizona enumerated under A.R.S. § 10-1502
include:
(a)
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(b)
liability for fees and penalties for conducting business in Arizona without a grant
of authority, and
(c)
the Arizona Attorney General or any other person may sue to enjoin the foreign
corporation from transacting business in Arizona and recover costs and reasonable attorneys’
fees.
An out-of-state limited liability company found to have transacted business in Arizona
without registration:
(a)
cannot bring a proceeding in any Arizona court, and
(b)
may be subject to an action by the Arizona Attorney General to restrain the
company from conducting business in Arizona without registering (A.R.S. §§ 29-809 and 810).
A certificate of disclosure is required for a foreign corporation to apply for authority to
transact business in Arizona, creating the same problems outlined above for Arizona
corporations. Certificates of disclosure are not required for the formation of limited liability
companies, limited liability partnerships or limited liability limited partnerships, all of which
afford liability protection. Consideration should be given to utilizing an LLC or LLP for a
replacement employee leasing entity.
Employee leasing entities have existed for years. They have been attractive to some
companies for the following reasons:
1.
Companies can outsource their payroll administration functions to a leasing
organization, which means that the leasing organization would handle paycheck
processing, direct deposit, payroll and Federal income tax withholding and
reporting, FMLA leave and short-term disability pay processing.
2.
The leasing organization could handle workers compensation and unemployment
compensation matters, including obtaining the requisite insurance coverage,
paying any periodic taxes and filing quarterly reports, and arranging for claims
processing.
3.
Companies can exclude leased employees from their employee benefit plans,
including pension, 401(k), health, life insurance, disability and equity
compensation plans, provided that the plans specify that individuals classified by
the Company as leased employees are excluded and provided further that the
Company otherwise satisfies any applicable nondiscrimination tests (as discussed
below).
Particularly if the leasing company and the operating entity share common ownership and
control, there is a material risk that a court might conclude that the form of the arrangement
should not prevail over its substance and that a violation by the leasing company should be
deemed a violation by the operating company. This conclusion might be based, for example, on
principles of agency law or reached by common law principles allowing an entity’s liability
shield to be pierced when the entity is an alter ego of another person or entity. These principles
need to be considered in establishing a leasing entity. Ideally, the ownership and control of the
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leasing and operating entities should not be identical. In light of the new law, one would expect
that a number of independent employee leasing entities will be created for this purpose, and that
operating entities will see their "payroll" expenses increase to cover the leasing entities' costs and
profit margin.
Regardless of the risk that a court may deem an employee leasing company to be the alter
ego of an operating entity for purposes of license revocations, some businesses may have little
choice. Lenders will be wary of making loans to businesses whose licenses may be permanently
revoked. Therefore, borrowers that are not employers will appear to be more insulated from the
draconian impact of the Act. Even if loans are made, the revocation of a borrower's licenses to
transact business will breach covenants in the loan documents, allowing acceleration of
indebtedness.
Setting up a leasing company will require consultation with your tax advisor. If leased
individuals are treated as employees of the operating company under Section 414(n) of the
Internal Revenue Code (i.e., the individuals provide services to the operating company pursuant
to a leasing agreement, the individuals have performed services for the operating company on a
substantially full-time basis for at least one year, and the individuals' services are performed
under the primary direction or control of the operating company), they must be counted as
employees of the operating company for purposes of the coverage and nondiscrimination tests
that apply to the operating company's tax-qualified pension and 401(k) plans. However, any
contributions or benefits accrued under the leasing organization's pension or 401(k) plan
attributable to services performed by the leased employee for the operating company may be
counted by the operating company in its coverage and nondiscrimination testing. Thus, for
example, if an operating company sponsors tax-qualified pension and 401(k) plans that cover the
management team but exclude rank and file personnel on the basis that they are leased
employees, the pension and 401(k) plans may not be able to satisfy the coverage and
nondiscrimination requirements applicable to tax-qualified plans (unless the leasing organization
sponsors its own tax-qualified pension or 401(k) plan and makes contributions or accrues
benefits on behalf of the leased employees). A lack of coverage or benefits for rank and file
employees under the operating company's plans may cause the benefits under those plans to
become immediately taxable to the plan participants, and the operating company would lose any
deduction attributable to unvested benefits.
If incorporating a new business, businesses should consider incorporating in a state other
than Arizona. If the worst were to happen and a company was twice found to have knowingly or
intentionally employed an unauthorized alien, the State of Arizona could revoke the company’s
authorization to transact business in Arizona, but could not revoke the corporate charter.
XIV. ACTIONS GUARANTEED TO TRIGGER LIABILITY.
There are certain actions that repeatedly appear in the news as items ICE focuses on and
are likely to cause a finding of knowingly or intentionally employing unauthorized workers.
Employers should avoid the practices that are sure to raise suspicion.
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XV.
1.
Do not purchase or arrange for counterfeit documents to be used by employees.
2.
Do not place orders for workers in other countries, unless using an approved U.S.
Visa program.
3.
Do not provide transportation across the border or transportation within the U.S.
for workers just coming into the U.S. unless you are absolutely sure they have
proper work authorization (for example, the company sponsored the individual for
a visa).
4.
Do not pay employees in cash. Particularly do not pay part of your work force in
cash and others by check.
5.
Make sure your company pays workers’ compensation and unemployment
insurance.
6.
Do not provide housing for individuals that you know are not lawfully present in
the United States.
SUMMARY OF KEY RECOMMENDATIONS
1.
Take steps to utilize legal counsel and the attorney-client and attorney workproduct privileges. Consider having legal counsel act as a liaison with law
enforcement or government agencies rather than having employees sign letters
and provide information directly.
2.
Audit all I-9 forms and ensure employees have completed I-9s on file.
3.
Conduct I-9 and immigration compliance training at your company and maintain
records of the training.
4.
Do not request more or different documents than the employee provides to
complete Section 2 of the Form I-9 if the documents provided reasonably appear
genuine on their face. Too much is too much!
5.
Do not make decisions based on race, ethnicity, national origin or citizenship
status or characteristics related to a certain race or ethnic group.
6.
Adopt and enforce an immigration and I-9 compliance policy. Discipline
employees who violate the policy or if they take shortcuts with any required
procedures.
7.
Use new hire acknowledgement forms requiring the employee to verify work
eligibility and commitment to comply with the company’s immigration
compliance policy.
8.
Use the Form W-9 as an additional step to verify each employee’s Social Security
number.
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9.
Make sure the Company has a strong anti-harassment and anti-discrimination
policy that includes national origin. Do not discriminate based on language
spoken or citizenship.
10.
Develop strategies for responding to complaints or inquiries from the general
public regarding an employee’s immigration status. Train customer service
personnel how to respond.
11.
Develop strategies for responding to government investigations, including ICE
investigations or investigations by the Attorney General or similar state
prosecutor.
12.
Establish procedures to address identity and social security mismatch issues and
other no match issues similarly to avoid charges of discrimination.
13.
Anticipate increased union activity so plan accordingly.
14.
Review and revise the Company’s records retention policy and clean up old
documents.
15.
Consider using leased employees or employment agencies, but only with a
strongly-worded agreement requiring I-9 and immigration law compliance as well
as other protections.
16.
Ensure that if Company uses independent contractors, the Company is compliant
with all laws, including wage and hour laws. Use of independent contractors can
lead to liability.
17.
Evaluate Company contracts.
18.
Add language to construction contracts regarding delay due to immigrationrelated issues.
19.
Add provisions to handbooks or employer policies stating that the company may
be required to cease payment of wages or provision of benefits to employee if the
company’s licenses are revoked or suspended pursuant to A.R.S. § 23-212 and it
is unable to conduct business.
20.
Try to ensure that each separate location in which the company operates has a
license specific to that location.
21.
Consider forming corporate entities outside of Arizona so that the company will
not lose the protections of corporate status even if it loses the authority to transact
business in Arizona.
22.
Do not use E-Verify on applicants.
23.
Do not verify existing employees using E-Verify.
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24.
Make sure employees are trained regarding E-Verify.
25.
Ensure confidentiality procedures are in place to protect personnel information.
26.
Companies should have E-Verify poster displayed.
27.
Do not pay cash wages!
28.
Ensure workers’ compensation and unemployment premiums are paid for each
employee.
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APPENDIX
Document
Page No.
The Avoiding Knowingly Triangle
67
Procedures and Processes to Respond to Government Agency Visits and Calls
Regarding Social Security No Match Inquiries (English/Spanish)
68-75
Responding to Callers Inquiring About Immigration Compliance, Threatening
to Report Company, or Expressing Negativity Towards Immigration
76-78
Memorandum to Managers and Supervisors re Immigration Compliance
(English/Spanish)
79-80
Memorandum to Managers re I-9 Employment Verification Requirements and
Anti-Harassment, Anti-Discrimination, and No Retaliation
81-82
W-9 Form (English/Spanish)
83-84
Immigration Compliance Policy and Acknowledgment Form (English/Spanish)
86-86
I-9 Form with List of Documents (English/Spanish)
87-104
Tips to Complete I-9 Form
105-109
Flowchart Regarding I-9 and E-Verify
110
Helpful Steps To Comply With Requirements of I-9 and E-Verify Program
111-119
Excerpt from DHS Handbook For Employers (M-274, pp. 41-51)
120-131
IRCA Prohibits Employment Discrimination
132
10 Steps to Avoid Immigration-Related Employment Discrimination
133
E-Verify – Employer DOs and DON’Ts
134
I-9 Reverification and Receipt of Application and Rehires
135-138
Creation and Maintenance of Personnel Files
139-144
ERROR! Electronic Employment Verification Systems: What will Happen
When Citizens Have to Ask the Government for Permission to Work?
145-147
Responding to Social Security Administration No-Match Letter
148-153
Immigrating Legally? Good Luck!
154
ACLU Know Your Rights (English/Spanish)
155-158
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602.322.4046
[email protected]
Julie A. Pace
602.322.4046
[email protected]
The Cavanagh Law Firm
Avoiding “Knowingly”
Fully Complete I-9 Forms
•
•
•
•
•
•
COMPANY
Response to government investigations
ICE investigations
Response to requests for personnel documents
Response to inquiries
–
SSA
–
DES
–
Police
–
Citizens
SSA no-match
Response to customers or third parties
•
•
•
•
•
•
•
•
67
:1498308-1
People and Comments
– No discussions about legal
status 24/7
New hire packet
W-9 forms
Employment policies and handbooks
Anti-harassment, anti-discrimination policies
Avoiding national origin discrimination
Agreements with leased employment agencies
Contract provisions (delay, immigration compliance)
Attorney-client privilege
THE CAVANAGH LAW FIRM, P.A.
MEMORANDUM
Julie A. Pace
The Cavanagh Law Firm
(602) 322-4046
FROM
Procedures & Processes to Respond to Government Agency Visits and Calls and Visits
Regarding Social Security No Match Inquiries
RE
A.
Calls or Visits from Non-Governmental Third Parties (Parents or Others)
Informing Company that an Employee is Using Someone-Else’s SSN. If an
individual calls or comes to the Company’s office and says, “An employee of your
company is using my child’s social security number,” or “An employee of your company
is using my social security number,” stay calm and polite. People are often upset, accuse
the Company of hiring undocumented workers, and threaten to contact the police or
Immigration and Customs Enforcement:
1.
Stay calm and politely state:
Thank you for bringing this matter to the Company’s
attention. Let me get some contact information from
you so that I can have someone follow up directly with
you.
2.
Ask for the following information:
a.
The caller’s name, including spelling;
b.
The caller’s address;
c.
The caller’s phone number;
d.
The caller’s e-mail or fax number;
e.
If the caller said that someone was using a child’s social security number
(or someone’s other than the caller), ask for the name of the child,
including spelling; and
f.
The social security number at issue.
3.
Never provide personnel information over the phone. Refer inquires to your
supervisor, Human Resources, the General Manager, or the Company’s lawyer.
4.
If the caller requests information from you, you may tell the caller:
I am not the person to handle your request. I will pass
on your information and someone will be
communicating with you.
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B.
Calls or Visits from Government Officials: If a government officer (ICE, OSHA,
Police, Border Patrol, Department of Economic Security, etc.) calls or comes to the office
and requests information on the Company or a Company employee, DO NOT ask if the
officer has a subpoena or search warrant:
1.
Direct the officer to the supervisor, on-site manager, or Company’s attorney and
allow that person to deal with the officer directly. Politely state:
I am sure that the Company will cooperate. However, I
am not the person to handle your request. Let me get
my supervisor.
2.
If there is no supervisor available or the officer will not wait to allow you to get a
supervisor, the supervisor or you could follow the steps outlined below:
3.
Restate:
I am sure the Company will cooperate. However, I am
not the person to handle your request. Let me get some
information from you and get the person who should
handle this for you.
4.
Ask the officer his or her name (or look for his name badge on his shirt, if any);
5.
Ask the officer what agency/department he or she is with (local police, sheriff,
DPS, ICE, Border Patrol, Dept. of Economic Security, etc.) or look for any
insignia on uniform, etc.
6.
Ask for a business card. If the officer does not have one, write down the
information that he or she provides, such as name, agency, badge number, etc.;
7.
If the officer is in “plain clothes” ask if you could see his official identification (to
ferret out imposters or bounty hunters, etc.);
8.
Try to determine why the officer is there, what he or she wants, and if he or she is
looking for someone in particular. If the officer requests information about a
specific individual, tell the officer that you are not authorized to provide that
information, but you are happy to contact someone who can handle the request.
9.
If the officer states that he has a subpoena or warrant, ask for a copy so that you
may review it and also consider sending it to the Company’s lawyer to review;
10.
Contact the Company’s designated contact person _______________________
immediately so that they may communicate with the officer directly by cell phone
or in person.
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©Julie A. Pace
602.322.4046
[email protected]
C.
ICE: 3 Day Notice for Documents. If ICE shows up to review I-9’s, they are supposed
to provide a three day written notice. Do not waive the three days. Do not voluntarily
give ICE anything. Tell the ICE officer:
I am not the person to handle this request. Let me get
someone for you.
Contact the Company’s designated contact person __________________________
immediately so that they may communicate with the officer directly by cell phone.
D.
If Agent Has Warrant for the Arrest of an Individual: If the agent has a warrant for
an employee’s arrest, do NOT interfere with the officer, or you may be arrested for
obstruction, etc. Allow the police to arrest the employee, but notify the Company’s
designated contact person or Company’s attorney immediately so they can handle the
incident.
E.
If Agent Has Search Warrant or Subpoena for Records: If a government officer has a
search warrant or subpoena for records, contact your supervisor and the Company’s
designated contact person or Company’s attorney immediately. Tell the officer:
I am sure that the Company will cooperate. However, I
am not the person to handle your request. Let me get
my supervisor or the Company’s attorney.
A supervisor or manager should:
F.
1.
Ask for and KEEP a copy of the search warrant or subpoena;
2.
Comply with the warrant or subpoena;
3.
Attempt to maintain a list or log of documents, records or other things taken away
by law enforcement;
4.
If asked by law enforcement if they may take certain documents, records or other
things, reply as follows, “only if it is covered by the search warrant.” Refrain
from providing consent to the removal of documents, records or things not
covered in the search warrant.
5.
Do not argue, resist or get into a confrontation with law enforcement.
6.
Contact the Company’s designated contact person __________________
immediately so that they may communicate with the officer directly in person or
by phone.
If Agent Requests SSNs, I-9 forms, or Documents: If law enforcement requests the
names and Social Security Numbers of employees, requests copies of Company or
employee records or files, or requests to review their I-9 forms, you should:
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©Julie A. Pace
602.322.4046
[email protected]ghlaw.com
1.
Politely state:
I am not the individual authorized to handle such a
request, but I would be willing to contact my
supervisor. Let me get some information from you and
get the person who should handle this.
Then follow the steps outlined in Section B above.
2.
Resist pressure from the agent to consent to provide documents or records even if
they threaten to return with a search warrant or subpoena. Tell the agent that you
do not have authority to provide the documents, but that you believe the company
will cooperate and you will get the appropriate person who can communicate with
them.
3.
Contact the Company’s designated contact person or Company’s attorney
immediately so that they may communicate with the officer directly in person or
by phone.
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©Julie A. Pace
602.322.4046
[email protected]
THE CAVANAGH LAW FIRM, P.A.
MEMORANDUM
Julie A. Pace
The Cavanagh Law Firm
(602) 322-4046
FROM
Procedimientos y Procesos Para Atender las Visitas de Agencias Gubernamentales y
Llamadas de Número de Seguro Social Sin Resultado
RE
A.
Llamadas o Visitas de Terceros No Gubernamentales (padres de familia u otros)
informando a la Compañía que un empleado está utilizando el número de seguro social
de otra persona. Si llama un individuo o se presenta en la oficina de la Compañía y dice:
"Un empleado de su compañía está utilizando el número de seguro social de mi hijo", o "Un
empleado de su empresa está utilizando mi número de seguro social", mantenga calma y sea
amable. Las personas a menudo pueden estar molestos, acusando a la Compañía de contratar
a trabajadores indocumentados, y amenazan con llamar a la policía o la Agencia de
Inmigración y Aduanas:
1.
Mantenga la calma y diga amablemente:
Gracias por traer este asunto a la atención de la
Compañía.
Permítame obtener algo de
información de usted para nosotros poder
contactarle directamente.
2.
Solicite la siguiente información:
a.
El nombre de la persona que llama, incluyendo como deletreado;
b.
La dirección de la persona que llama;
c.
El número de teléfono de quien llama;
d.
El correo electrónico (e-mail) de la persona que llama mail o número de
fax;
e.
Si la persona que llamó dijo que alguien estaba usando el número de
seguro social de un niño (o alguien que es distinto de la persona que
llama), pregunte por el nombre del niño, incluyendo deletreado, y
f.
El número de seguro social en cuestión.
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©2013 Julie A. Pace
602.322.4046
[email protected]
THE CAVANAGH LAW FIRM, P.A.
3.
Nunca proporcione información acerca de empleados por teléfono. Refiera
preguntas a su supervisor, Recursos Humanos, el Gerente General, o el abogado
de la Compañía.
4.
Si la persona que llama solicita información de usted, usted puede decirle a la
persona que llama:
Yo no soy la persona para tratar su pregunta. Voy
a transmitir su información y alguien se
comunicará con usted.
B.
Llamadas o Visitas de Oficiales del Gobierno: Si algún oficial del gobierno (ICE,
OSHA, Policía, Patrulla Fronteriza, Departamento de Seguridad Económica, etc.) llama
por teléfono o se presenta en la oficina y le pide información sobre la Compañía o un
empleado de la Compañía, NO le pregunte si el oficial tiene una citación u orden de registro:
1.
Dirija al oficial al supervisor, Gerente de la obra, o al abogado de la Compañía y
permita que aquella persona trate con el oficial directamente. Diga cortésmente:
Estoy seguro que la Compañía va a cooperar.
Sin embargo, yo no soy la persona debida para
atender su solicitud. Permítame hablarle a mi
supervisor.
2.
Si no está disponible un supervisor, o si el oficial no le permite hablarle a un
supervisor, el supervisor o usted pueden seguir las direcciones que aparecen a
continuación:
3.
Repetir:
Estoy seguro que la Compañía va a cooperar.
Sin embargo, yo no soy la persona debida para
atenderle. Permítame obtener algo de
información de usted y encontrar a la persona
que le debe atender.
4.
Pídale su nombre al oficial (o busque la placa de identificación, si la hubiere,
sobre su camisa);
5.
Pregúntele al oficial en cual agencia/departamento el o ella trabaja (policía local,
sheriff, DPS, ICE, Patrulla Fronteriza, Depto. de Seguridad Económica, etc.) o
busque si hay alguna insignia sobre su uniforme, etc.;
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©2013 Julie A. Pace
602.322.4046
[email protected]
THE CAVANAGH LAW FIRM, P.A.
C.
6.
Pídale una tarjeta de negocios. Si el oficial no tiene una, anote la información que
el o ella le da, tal como, agencia, número de insignia o placa, etc.;
7.
Si el oficial no está uniformado, pregúntele si puede usted ver su identificación
oficial (para descubrir a impostores o cazadores de recompensas., etc.);
8.
Intente determinar la razón por la cual el oficial se ha presentado, qué pueda ser lo
que el o ella quiere, y si el o ella está buscando a alguna persona en particular. Si
el oficial pide información sobre algún individuo específico, dígale al oficial que
usted no tiene la autorización para darle esa información, pero que tendrá el placer
de informar a alguien quien pueda proporcionar la información que solicita.
9.
Si el oficial declara que tiene una citación o mandamiento de arresto, pídale una
copia para que usted la revise y también evalúe si se debe mandar al abogado de
la compañía para que él lo revise;
10.
Póngase en contacto con la persona indicada en la Compañía ______________
inmediatamente para que el o ella se pueda comunicar con el oficial directamente,
por teléfono celular o en persona.
ICE: Aviso de Tres Días para Revisar Documentos. Si el ICE se presenta para revisar
documentos I-9, deben dar aviso por escrito de tres días. Asegúrese que han transcurrido
los tres días. No de nada al ICE voluntariamente. Dígale lo siguiente al oficial de ICE:
Yo no soy la persona para tratar su pregunta.
Permítame conseguir a alguien que le ayude.
Póngase en contacto con la persona indicada en la Compañía ______________
inmediatamente para que el o ella se pueda comunicar con el oficial directamente, por
teléfono celular o en persona.
D.
Si el Agente Tiene Mandamiento de Arresto para Algún Individuo: Si el agente tiene
un mandamiento de arresto para un empleado, NO interfiera con el oficial; o usted podría
ser arrestado por resistencia a un oficial, etc. Permita que la policía arreste al empleado,
pero notifique a la persona indicada en la Compañía o el abogado de la Compañía
inmediatamente para que el o ella se puedan encargar del asunto.
E.
Si el Agente Tiene Mandamiento de Registro o Citación para Exhibir
Documentación: Si un oficial del gobierno tiene mandamiento de registro o citación
para obtener documentación, póngase en contacto con su supervisor y la persona indicada
de la Compañía o el abogado de la Compañía inmediatamente. Dígale al oficial:
Estoy seguro que la Compañía va a cooperar.
Sin embargo, yo no soy la persona debida para
atenderle. Permítame hablarle a mi supervisor
o al abogado de la Compañía.
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©2013 Julie A. Pace
602.322.4046
[email protected]
THE CAVANAGH LAW FIRM, P.A.
El supervisor o gerente debe seguir los siguientes pasos;
F.
1.
Pida y RETENGA una copia del mandamiento de registro o citación;
2.
Obedezca el mandamiento o citación;
3.
Intente mantener una lista o registro de documentos, registros, u otras cosas
requisitadas por los agentes de la ley;
4.
Sí los agentes de la ley le piden ciertos documentos, registros u otras cosas,
responda de este modo: “sólo si está incluido en el mandamiento de registro.”
Evite dar su consentimiento al traslado de documentos, registros, o cosas no
incluidas en la citación de registro.
5.
No alegue, resista o confronte al oficial del gobierno.
6.
Póngase en contacto con la persona indicad de la Compañía de inmediato
___________________________ para que la persona se pueda comunicar con el
oficial directamente por teléfono o en persona.
Si el Agente Pide Números de Seguro Social, (SSNs), Formas I-9 o Documentos: Si
los agentes de la ley piden los nombres y números de Seguro Social de empleados, copias
de registros de empleados de la Compañía, o pide revisar sus documentos I-9 usted debe:
1.
Decir amablemente:
Yo no soy la persona autorizada para tratar con tal
petición, pero sería mi placer hablarle a mi supervisor.
Por favor deme algo de información, y hablaré con la
persona quien debe tratar esto.
Luego, siga las instrucciones delineadas en la Sección B,
anterior.
2.
Resista si el agente le sigue pidiendo su consentimiento para presentar
documentos o registros, aun si amenaza regresar con un mandamiento de registro o
citación. Dígale al agente que usted no está autorizado para proporcionar los
documentos, pero que Usted piensa que la Compañía va a cooperar, y que usted se
pondrá en contacto con la persona apropiada, quien se puede comunicar con ellos.
3.
Póngase en contacto con la persona indicada de la Compañía o el abogado de la
Compañía inmediatamente, para que esa persona se comunique con el oficial
directamente en persona o por teléfono.
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©2013 Julie A. Pace
602.322.4046
[email protected]
RESPONDING TO CALLERS INQUIRING ABOUT IMMIGRATION
COMPLIANCE, THREATENING TO REPORT COMPANY, OR
EXPRESSING NEGATIVITY TOWARDS IMMIGRATION
I.
II.
THINGS TO KEEP IN MIND DURING THE COMMUNICATIONS:
1.
Assume that you are being tape recorded.
2.
Avoid getting caught up in an argument with the caller or visitor. Do not discuss the
philosophy or politics of immigration or the current immigration laws (state or
federal). Many of the callers or visitors will be fishing for statements that can be used
against the Company, so each employee needs to use caution when speaking and not
say anything that could be taken out of context and used against the Company.
3.
Minimize providing your name. Instead you can refer the caller or visitor to legal
counsel and provide our name and contact information. You can also provide a person
with the attached memo.
4.
Consider providing a copy of the attached letter explaining the Company’s hiring
practices. If it is a caller, offer to take the caller’s name and address and send them the
attached memo regarding the Company’s hiring practices.
THINGS YOU CAN DO AND SAY:
1.
Thank you for your interest in the Company.
2.
The Company is committed to employing only those individuals who are
authorized to work in the United States. The Company has and enforces an
immigration compliance policy. The Company does not unlawfully discriminate
on the basis of citizenship or national origin.
3.
If the caller or visitor states that he or she knows that the Company is employing
undocumented workers, state:
If you have specific information regarding a Company employee, please provide
it to the Company in writing so that the Company can investigate and take
appropriate action. The Company requests that you provide your information in
writing.
4.
Please provide your concerns or any information that you have to the Company’s
legal counsel in writing. Include the name of the employee and any information
you have that makes you believe that the employee is not authorized to work in
the United States.
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©2013 Julie A. Pace
602.322.4046
[email protected]
76
Direct letters to: Julie A. Pace
The Cavanagh Law Firm
1850 North Central Avenue – Suite 2400
Phoenix, Arizona 85004
[email protected]
(602) 322-4046
5.
If a person is very pushy or aggressive, you can say:
I do not feel comfortable talking with you about this. Please direct your
questions or concerns to the Company or the Company’s legal counsel in writing.
6.
If a person is at the Company in person and refuses to leave and you feel threatened or
the person is disrupting business, state:
I need to ask you to leave the business premises so that we can continue to do our
jobs and serve our customers. We appreciate your concern and ask that you put
any information you have in writing to the Company’s legal counsel. Thank you.
Goodbye.
7.
If the person still will not leave and is acting disruptive or threatening, you may need
to call 911 and involve the police to get the person so leave.
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©2013 Julie A. Pace
602.322.4046
[email protected]
MEMORANDUM REGARDING IMMIGRATION and I-9 COMPLIANCE
Thank you for your interest. We are pleased to have the opportunity to provide you
information about the Company and its hiring practices. The Company has established and enforces
an immigration compliance policy. We are committed to employing only those individuals who are
authorized to work in the United States. The Company will not knowingly hire or continue to
employ an unauthorized worker. At the same time, in compliance with federal and state law, the
Company does not unlawfully discriminate on the basis of citizenship or national origin.
In compliance with the Immigration Reform and Control Act of 1986 (IRCA), each new
employee, as a condition of employment, must complete the Employment Eligibility Verification
Form (Form I-9) and present documentation establishing identity and employment eligibility. The
Federal Government currently provides a list of documents that employees may choose from to show
the Company at the time that Company completes Section 2 of the Form I-9. Under IRCA, an
employer is prohibited from asking for more or different documents than the employee provides
when completing Section 2 of the Form I-9, and the Company is also prohibited from refusing to
accept the documents presented as long as the documents presented on their face reasonably appear to
be genuine.
In addition to implementing and enforcing our immigration compliance policy, we train our
employees on I-9 and immigration compliance. We also conduct anti-harassment and antidiscrimination training for our employees. We go a step beyond what is required by IRCA (while
staying within the limits of the anti-discrimination provisions of IRCA) and require our newly hired
employees to complete an IRS Form W-9 on which the employee affirms that the social security
number that the employee provided is correct.
If you have specific information regarding a Company employee, please provide it to the
Company in writing so that the Company can investigate and take appropriate action. The Company
cannot act on vague reports based on appearance, ethnicity, or language skills because to do so could
be discriminatory. In order to conduct an investigation and take appropriate action without violating
anti-discrimination laws, the Company needs the complaint or concern in writing.
Please provide your concerns or any information that you have to the Company’s legal
counsel in writing to the address below. Include the Company’s name, the name of the employee,
the employee’s worksite, and any information you have that makes you believe that the employee is
not authorized to work in the United States. Please also include your name, address, and phone
number.
Direct letters to: Julie A. Pace
The Cavanagh Law Firm
1850 North Central Avenue – Suite 2400
Phoenix, Arizona 85004
[email protected]
(602) 322-4046
Thank you for your cooperation.
1498460_1
©2013 Julie A. Pace
602.322.4046
[email protected]
78
MEMORANDUM
The Company is committed to obeying the law. The Company will only hire individuals
authorized to work in the United States. It will not knowingly hire an undocumented or
unauthorized worker. Additionally, it will not discriminate because of someone’s race, color, or
national origin. It will not discriminate because of a person’s name, the language a person
speaks, or because a person speaks with an accent.
Supervisors and managers are responsible for helping the Company obey the law and
need to comply with the following:
1.
NEVER say that there are undocumented workers or “illegal aliens” working at the
Company. If you know for sure that an individual is not authorized to work in the United
States you must report this information immediately to the President, General Manager,
or Controller. The Company will then investigate your report in the same way it
investigates all personnel and employment decisions and take the proper action.
2.
NEVER assume that someone is not authorized to work in the United States merely
because the person has a Spanish or foreign surname or does not speak English or does
not speak English well. DO NOT make off-hand or casual comments regarding whether
someone is an undocumented worker or “illegal alien.” Such remarks can be construed
as national origin discrimination.
3.
DO NOT give rides to people you know are not authorized to work in the United States.
4.
DO NOT provide housing or lodging for people you know are not authorized to work in
the United States.
5.
DO NOT help get documents or identification for people who are not authorized to work
or assist them in getting hired.
6.
DO NOT contact people in other countries to “place orders” for workers.
7.
DO treat everyone respectfully and professionally.
8.
DO use respectful words. When speaking of someone that is not authorized to work in
the United States, use the terms “unauthorized worker” or “undocumented worker.” Do
not use the terms mojado, wetback, illegal, or illegal alien.
9.
DO remind supervisors not to talk casually about whether workers are unauthorized. You
should never talk about whether someone is an undocumented worker or “illegal alien”
unless you have direct knowledge that they are not authorized to work.
Violations of this policy can lead to discipline up to and including termination.
©2013 Julie A. Pace
602.322.4046
[email protected]
1498457-2
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MEMORANDUM
La Compañía está comprometida a cumplir con la ley. La Compañía contratará solamente a
personas autorizadas a trabajar en los Estados Unidos. La Compañía no contratará intencionalmente
ningún trabajador indocumentado o no autorizado. Además, no discriminará contra ninguno a causa de
su raza, color de piel, u origen nacional, ni discriminará a causa del nombre de una persona, el idioma de
esa persona, o porque una persona hable con un acento.
Supervisores y gerentes son responsables de ayudar a la Compañía a obedecer la ley y de la
necesidad de cumplir con lo siguiente:
1.
NUNCA diga que hay trabajadores indocumentados o “extranjeros ilegales” trabajando en la
Compañía. Si usted está seguro que una persona no está autorizada a trabajar en los Estados
Unidos, ESTA OBLIGADO a reportar esta información inmediatamente al Presidente, Gerente
General, o Contralor. La Compañía entonces procederá a investigar su reporte de la misma
manera en que investiga todo las decisiones de personal y empleo y tomará las medidas
apropiadas.
2.
NUNCA suponga que alguien no está autorizado a trabajar en los Estados Unidos simplemente
porque la persona tiene un apellido español o extranjero o no habla inglés o no habla inglés bien.
NO haga comentarios espontáneos o informales sobre si alguien es o no es un trabajador
indocumentado o “extranjero ilegal.” Tales comentarios pueden considerarse como
discriminación de origen nacional.
3.
NO le de aventones a gente si sabe que no están autorizados a trabajar en los Estados Unidos.
4.
NO proporcione alojamiento para personas si sabe que no están autorizados a trabajar en los
Estados Unidos.
5.
NO ayude a conseguir documentos o identificación para personas que no están autorizadas a
trabajar ni ayúdelos a conseguir empleo.
6.
NO se comunique con personas en otros países para “poner una orden” a conseguir trabajadores.
7.
SI trate a los demás con respeto y en una manera profesional.
8.
SI use términos respetuosos. Cuando se está refiriendo a alguien que no está autorizado a
trabajar en los Estados Unidos, use los términos “trabajador sin autorización” o “trabajador
indocumentado.” No use términos como mojado, ilegal, o extranjero ilegal.
9.
SI reacuérdeles a los supervisores y jefes de equipo que no deben comentar informalmente sobre
si los trabajadores están o no están autorizados. Nunca debe usted comentar sobre si alguien es o
no es un trabajador indocumentado o “extranjero ilegal” a menos que tiene conocimiento directo
que no están autorizados a trabajar.
Violaciones de esta política pueden resultar en disciplina, hasta e incluyendo terminación de empleo.
©2013 Julie A. Pace
602.322.4046
[email protected]
1498458-2
80
THE CAVANAGH LAW FIRM
A Professional Association
CONFIDENTIAL
ATTORNEY-CLIENT PRIVILEGED
ATTORNEY WORK PRODUC T
*** MEMORANDUM ***
TO:
Managers
FROM:
Julie A. Pace
RE:
I-9 Employment Verification Requirements and Anti-Harassment, AntiDiscrimination, and No Retaliation
We want to follow up again and remind you about the I-9 employment verification requirements and
that each employee must comply with the Company’s Anti-Harassment, Anti-Discrimination, and No
Retaliation Policy.
The federal government states that if the employer has a fully complete I-9 you cannot be
charged with I-9 verification violations and you have a defense to charges of knowingly
employing unauthorized workers. The United States Department of Homeland Security (“DHS”)
(which includes U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and
Customs Enforcement (“ICE”)) has published a guide book regarding an employer’s duties in
completing the Form I-9. The DHS/ICE written guidance to employers and managers expressly
states:
6.
Q.
What happens if I properly complete and retain a Form I-9 and
DHS discovers that my employee is not actually authorized to
work?
A.
You cannot be charged with a verification violation. You will
also have a good faith defense against the imposition of
employer sanctions penalties for knowingly hiring an
unauthorized individual, unless the government can show you
had knowledge of the unauthorized status of the employee.
U.S. Citizenship and Immigration Services, Handbook for Employers: Guidance for Completing
Form I-9 (Employment Eligibility Verification Form, p. 41 (4/30/13).
Employers must accept documents that reasonably appear genuine and relate to the person
presenting them, and employers may not discriminate. Employers and managers are prohibited
from discriminating against a person because of their national origin, skin color, appearance,
language skills, foreign name, fact that they are from another country, or similar factors. DHS/ICE
has stated that the employer performs its due diligence if it fully completes an I-9 with documents
that reasonably appear to be genuine and relate to the person presenting the documents. The Ffederal
Ggovernment, through DHS/ICE, also provides specific direction in writing as follows:
9.
Q.
What is my responsibility concerning the authenticity of
document(s) presented to me?
A.
You must examine the document(s), and if they reasonably
appear on their face to be genuine and to relate to the person
Julie A. Pace
602-322-4046
[email protected]
1649226_1
81
Confidential
Attorney-Client Privileged
Attorney Work Product
presenting them, you must accept them. To do otherwise could
be an unfair immigration-related employment practice. . . .
U.S. Citizenship and Immigration Services, Handbook for Employers: Guidance for Completing
Form I-9 (Employment Eligibility Verification Form, p. 42 (4/30/13).
We have spoken with government representatives from both the DHS/ICE and from the Department
of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices
(“DOJ/OSC”). The OSC enforces the anti-discrimination requirements relating to I-9s and
employment verification.
Chris S. from USCIS (DHS/ICE) informed us on May 28, 2013, that a Company’s duty is to review
the document(s) presented by the employee and determine whether the documents reasonably appear
to be genuine and relate to the person who is presenting the document(s). Chris S. stated that if the
employer or manager has taken this step and has a fully completed I-9 for the individual, then the
Federal Government’s (DHS/ICE) written instructions are that the company or person has completed
its due diligence and the company or person has a defense to charges of knowingly hiring or
continuing to employ an unauthorized worker.
We spoke with an officer with the DOJ/OSC, Sergio Esquivel, on May 28, 2013. He stated that if a
person’s identification appears to be genuine and relate to the person presenting it, that the company
is required under the anti-discrimination rules to accept the documents. Refusal to accept documents
that reasonably appear genuine can result in charges of discrimination being filed with the DOJ/OSC.
Remember that the Company is committed to obeying the law regarding immigration
compliance and anti-discrimination, and supervisors and managers are responsible for helping us
to comply with all applicable laws.
a)
If you know for sure that an individual is not authorized to work in the United
States (for example someone tells you) then you must report this information
immediately to Human Resources. The Company will then investigate the situation
in the same way it investigates all personnel and employment decisions and take the
proper action.
b)
If anyone discusses or mentions not having status or not having documents, refer
them to Human Resources, and report the conversation yourself directly to
Human Resources.
c)
NEVER assume that someone is not authorized to work in the United States merely
because the person has a Spanish or foreign surname, or does not speak English or
does not speak English well. DO NOT make off-hand or casual comments regarding
whether someone is an undocumented worker or “illegal alien.” Such remarks can be
construed as national origin discrimination.
Thank you for all you do to comply with our policies, procedures, and practices. We appreciate your
efforts.
Julie A. Pace
602-322-4046
[email protected]
1649226_1
82
W-9
Form
(Rev. December 2011)
Department of the Treasury
Internal Revenue Service
Request for Taxpayer
Identification Number and Certification
Give Form to the
requester. Do not
send to the IRS.
Print or type
See Specific Instructions on page 2.
Name (as shown on your income tax return)
Business name/disregarded entity name, if different from above
Check appropriate box for federal tax classification:
Individual/sole proprietor
C Corporation
S Corporation
Partnership
Trust/estate
Exempt payee
Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=partnership) a
Other (see instructions) a
Address (number, street, and apt. or suite no.)
Requester’s name and address (optional)
City, state, and ZIP code
List account number(s) here (optional)
Part I
Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on the “Name” line
to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a
resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other
entities, it is your employer identification number (EIN). If you do not have a number, see How to get a
TIN on page 3.
Social security number
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose
number to enter.
Employer identification number
–
–
–
Part II
Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding, and
3. I am a U.S. citizen or other U.S. person (defined below).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage
interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and
generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the
instructions on page 4.
Sign
Here
Signature of
U.S. person a
Date a
General Instructions
Note. If a requester gives you a form other than Form W-9 to request
your TIN, you must use the requester’s form if it is substantially similar
to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are
considered a U.S. person if you are:
• An individual who is a U.S. citizen or U.S. resident alien,
• A partnership, corporation, company, or association created or
organized in the United States or under the laws of the United States,
• An estate (other than a foreign estate), or
• A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or
business in the United States are generally required to pay a withholding
tax on any foreign partners’ share of income from such business.
Further, in certain cases where a Form W-9 has not been received, a
partnership is required to presume that a partner is a foreign person,
and pay the withholding tax. Therefore, if you are a U.S. person that is a
partner in a partnership conducting a trade or business in the United
States, provide Form W-9 to the partnership to establish your U.S.
status and avoid withholding on your share of partnership income.
Section references are to the Internal Revenue Code unless otherwise
noted.
Purpose of Form
A person who is required to file an information return with the IRS must
obtain your correct taxpayer identification number (TIN) to report, for
example, income paid to you, real estate transactions, mortgage interest
you paid, acquisition or abandonment of secured property, cancellation
of debt, or contributions you made to an IRA.
Use Form W-9 only if you are a U.S. person (including a resident
alien), to provide your correct TIN to the person requesting it (the
requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are waiting for a
number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt
payee. If applicable, you are also certifying that as a U.S. person, your
allocable share of any partnership income from a U.S. trade or business
is not subject to the withholding tax on foreign partners’ share of
effectively connected income.
Cat. No. 10231X
83
Form W-9 (Rev. 12-2011)
Form.
W-9(SP)
Entregue el
formulario al
solicitante. No lo
envíe al IRS.
Solicitud y Certificación del Número
de Identificación del Contribuyente
(Rev. diciembre de 2011)
Department of the Treasury
Internal Revenue Service
Escriba en letra de imprenta o a máquina.
Vea Instrucciones específicas en la página 2.
Nombre (tal como aparece en su declaración de impuestos sobre el ingreso)
Nombre del negocio/Nombre de la entitad no considerada como separada de su dueño, si es diferente al de arriba
Marque el encasillado correspondiente para la clasificación tributaria federal:
Sociedad anónima del tipo C
Sociedad anónima del tipo S
Beneficiario
exento
Individuo/empresario por cuenta propia
Sociedad colectiva
Fideicomiso/caudal hereditario
Cía. de responsabilidad limitada. Anote la clasificación tributaria (C=Soc. anónima del tipo C, S=Soc. anónima del tipo S,
Otro (vea las instrucciones) a
Nombre y dirección del solicitante (opcional)
P=Soc. colectiva) a
Dirección (número, calle y apartamento u oficina)
Ciudad, estado y código postal (ZIP)
Anote el(los) número(s) de cuenta(s) aquí (opcional)
Parte I
Número de identificación del contribuyente (TIN)
Anote su número de identificación del contribuyente en el encasillado correspondiente. El número de identificación del
contribuyente tiene que concordar con el nombre provisto en la línea “Nombre” para evitar la retención adicional del
impuesto. Para los individuos, éste es su número de seguro social (SSN). Sin embargo, para un extranjero residente,
empresario por cuenta propia o entidad no considerada separada, vea las instrucciones para la Parte I en la página 3. Para
otras entidades, es su número de identificación patronal (EIN). Si no tiene un número, vea Cómo obtener un TIN, en la
página 3.
o
Número de identificación del empleador
Nota: Si la cuenta está a nombre de más de una persona, vea la tabla en la página 4 para recibir
asesoramiento sobre qué nombre debe escribir.
Parte II
Número de seguro social
Certificación
Bajo pena de perjurio, yo declaro que:
1. El número que aparece en este formulario es mi número de identificación del contribuyente correcto (o estoy esperando que me asignen un número) y
2. No estoy sujeto a la retención adicional de impuestos porque: (a) Estoy exento de la retención adicional o (b) No he sido notificado por el Servicio
de Impuestos Internos (IRS) de que estoy sujeto a la retención adicional de impuestos como resultado de no declarar todos los intereses o
dividendos o (c) el IRS me ha notificado que ya no estoy sujeto a la retención adicional y
3. Soy ciudadano de los EE.UU. u otra persona de los Estados Unidos (que se define después).
Instrucciones para la certificación. Tiene que tachar la partida 2 anterior si el IRS le ha notificado que usted en estos momentos está sujeto a la
retención adicional de impuestos porque no declaró todos los intereses y dividendos en su declaración de impuestos. Para las transacciones de bienes
inmuebles, la partida 2 no corresponde. Para los intereses hipotecarios pagados, la adquisición o abandono de bienes asegurados, la cancelación de
deudas, las contribuciones a un arreglo de jubilación individual (IRA) y, por lo general, los pagos que no sean intereses y dividendos, no se le requiere
firmar la certificación, pero tiene que proveer su número de identificación del contribuyente correcto. Vea las instruccciones en la página 4.
Firme
Aquí
Firma de la
persona de los EE.UU.
Fecha
a
a
Instrucciones generales
Definición de persona de los EE.UU. Para propósitos tributarios federales, a
usted se le considera una persona de los EE.UU. si es:
Las secciones a las cuales se les hace referencia son del Código Federal de
Impuestos Internos, a menos que se indique de otra manera.
• Un individuo que es ciudadano o extranjero residente de los EE.UU.,
• Una sociedad colectiva, sociedad anónima, compañía o asociación creada u
organizada en los EE.UU. o bajo las leyes de los EE.UU.,
Propósito del formulario
• Un caudal hereditario (que no sea un caudal hereditario extranjero),
Una persona a quien se le requiera presentar una declaración ante el IRS para
facilitar información tiene que obtener el número de identificación del
contribuyente (TIN) correcto de usted para declarar, por ejemplo, ingresos que le
ha pagado a usted, transacciones de bienes inmuebles, intereses hipotecarios que
usted pagó, adquisición o abandono de bienes asegurados, cancelación de
deudas o contribuciones que usted hizo a arreglos IRA.
• Un fideicomiso doméstico (como se define en la sección 301.7701-7 de la
Reglamentación).
Reglas especiales para las sociedades colectivas. A las sociedades colectivas
que desempeñen actividades comerciales o de negocios en los EE.UU. por lo
general se les requiere pagar un impuesto de retención sobre toda participación
en los ingresos de socios extranjeros procedentes de tal negocio. Además, en
ciertos casos en los que un Formulario W-9(SP) (o Formulario W-9, en inglés) no
haya sido recibido, se requiere que la sociedad colectiva que dé por supuesto que
un socio es persona extranjera y que debe pagar el impuesto de retención. Por lo
tanto, si usted es una persona de los EE.UU. que es socio en una sociedad
colectiva que desempeña actividades comerciales o de negocios en los EE.UU.,
provéale un Formulario W-9(SP) (o un Formulario W-9, en inglés) a la sociedad
colectiva para establecer su condición de estadounidense y evitar la retención
sobre su participación asignable de esos ingresos.
Use el Formulario W-9(SP) (o el Formulario W-9, en inglés) sólo si es una
persona de los EE.UU. (incluyendo a un extranjero residente) para proveerle su
número de identificación del contribuyente (TIN) correcto a la persona que se lo
solicita (el solicitante) y, cuando se aplique, para:
1. Certificar que el TIN que está facilitando es correcto (o que está esperando
para que se le asigne un número),
2. Certificar que no está sujeto a la retención adicional de impuestos o
3. Reclamar una exención de la retención adicional si es un beneficiario de pago
exento de los EE.UU. Si le corresponde, también certifica que, como persona de
los EE.UU., su participación asignable de todo ingreso de una sociedad colectiva
proveniente de comercio o negocio estadounidense no está sujeta al impuesto
retenido sobre la participación de socios extranjeros en los ingresos relacionados
efectivamente.
La persona que le entrega el Formulario W-9(SP) a la sociedad colectiva para
propósitos de establecer su condición de estadounidense y evitar la retención
sobre su participación asignable de los ingresos netos procedentes de la sociedad
colectiva que desempeña comercio o negocios en los EE.UU. es, en los siguientes
casos:
• El dueño estadounidense de una entidad no considerada separada y no la
entidad en sí;
Nota: Si un solicitante le da un formulario que no es el Formulario W-9(SP) (o el
Formulario W-9, en inglés), para solicitar su número de identificación del
contribuyente, tiene que usar el formulario del solicitante si es considerablemente
similar a este Formulario W-9(SP) (o al Formulario W-9, en inglés).
Cat. No. 38917U
• El cesionista u otro dueño estadounidense de un fideicomiso cesionista y no el
fideicomiso en sí y
84
Formulario W-9(SP) (Rev. 12-2011)
IMMIGRATION COMPLIANCE POLICY
AND ACKNOWLEDGEMENT FORM
The Company is committed to employing only those individuals who are authorized to
work in the United States. The Company does not unlawfully discriminate on the basis of
citizenship or national origin. In compliance with the Immigration Reform and Control Act of
1986, each new employee, as a condition of employment, must complete the Employment
Eligibility Verification Form I-9 and present documentation establishing identity and
employment eligibility. The Federal Government currently provides a list of documents from
which employees may choose to show the Company at the time Company completes Section 2 of
the I-9 Form.
1.
I understand that the Company will only hire individuals who are authorized to
work in the United States.
2.
I understand that the Company does not unlawfully discriminate on the basis of
citizenship or national origin.
3.
I understand that under federal law I am required to provide the Company with
valid and accurate documents to establish my identity and my authorization to
work in the United States and I am required to complete Section 1 of the Form I-9
completely and truthfully.
4.
By my signature below, I affirm that I am legally eligible for employment in the
United States.
5.
I hereby state that all information provided to the Company on the Form I-9 is
true and accurate. I am aware that false statements, misrepresentations of fact, or
material omissions may result in the termination of my employment.
6.
I understand that I am an at-will employee, and that the Company and I both have
the right to terminate my employment at any time, for any reason or no reason,
with or without cause, and with or without notice. I understand that violation of
the Company’s policies and practices, including the Immigration Law
Compliance Policy, may result in discipline, up to and including termination.
7.
I understand and agree to comply with all of the Company’s policies, practices,
and procedures.
Employee Name (Print):____________________________________________________
_____________________________________________________ __________________
Employee Signature
Date
©2013 Julie A. Pace
602.322.4046
[email protected]
1498451-1
85
POLITICA DE CUMPLIMIENTO CON INMIGRACION
Y FORMA DE RECONOCIMIENTO
La Compañía se ha comprometido a emplear sólo a aquellos individuos que estén
autorizados a trabajar en los Estados Unidos. La Compañía no discrimina ilegalmente a base de
la ciudadanía o nacionalidad de origen. En cumplimiento con el Acta de Reforma y Control
Migratorio de 1986, cada nuevo empleado, como condición de empleo, debe completar el
Formulario de Verificación de Elegibilidad de Empleo I-9 y presentar documentación que
establezca la identidad y elegibilidad de empleo. El Gobierno Federal proporciona actualmente
alrededor de 24 documentos de los que los empleados pueden optar por mostrar a la Compañía
en el momento en que la Compañía completa la Sección 2 del Formulario I-9.
1.
Entiendo que la Compañía solo contratara a personas que estén autorizadas para trabajar
en los Estados Unidos.
2.
Entiendo que la Compañía no discrimina ilegalmente a base de la ciudadanía o
nacionalidad de origen.
3.
Entiendo que bajo ley federal estoy obligado a proporcionar a la Compañía con
documentos válidos y precisos para establecer mi identidad y mi autorización para
trabajar en los Estados Unidos y estoy obligado a completar la Sección 1 del Formulario
I-9 completamente y en forma veraz.
4.
Por medio de mi firma al calce, afirmo que soy legalmente elegible para trabajar en los
Estados Unidos.
5.
Por medio de la presente declaro que la informacion proporcionada a la Compañía en el
Formulario I-9 es verdadera y exacta. Entiendo de que las declaraciones falsas,
falsedades de hechos, u omisiones de hechos materiales pudieran ser motivo para la
terminación de mi empleo.
6.
Entiendo que soy un empleado a voluntad propia, y que tanto yo como la Compañía
ambos tenemos el derecho de terminar mi empleo en cualquier momento, con o sin
motivo, y con o sin aviso. Entiendo que violaciones de las políticas y prácticas de la
Compañía, inclusive la Política de Cumplimiento con las Leyes de Inmigración, pudieran
resultar en accion disciplinaria, hasta e inclusive terminación.
7.
Entiendo y estooy de acuerdo en cumplir con todas las políticas, prácticas y
procedimientos de la Compañía.
Nombre de Empleado (letras de imprenta):
Firma de Empleado
Fecha
Esta traducción se incluye únicamente para su conveniencia. El texto del original en inglés controlará en
todos aspectos los derechos y obligaciones de un empleado.
:1498452-2
86
Instructions for Employment Eligibility Verification
Department of Homeland Security
U.S. Citizenship and Immigration Services
USCIS
Form 1-9
OMB No. 1615-0047
Expires 03/31/2016
Read all instructions carefully before completing this form.
Anti-Discrimination Notice. It is iJlegal to discriminate against any work-authorized individual in hiring, discharge,
recruitment or referral for a fee, or in the employment eligibility verification (Form 1-9 and E- Verify) process based on
that individual's citizenship status, immigration status or national origin. Employers CANNOT specify which
document(s) they will accept from an employee. The refusal to hire an individual because the documentation presented
has a future expiration date may also constitute iJlegal discrimination. For more information, call the Office of Special
Counsel for Immigration-Related Unfair Employment Practices (OSC) at 1-800-255-7688 (employees), 1-800-255-8155
(employers), or 1-800-237-2515 (TDD), or visit www.justice.gov/crt/about/osc.
mat
Is tJie PUrPQse
of ThiS .Form.?'1'H4v:'.•,. ,\f_;,
,
,
~p'~~~-~
}./,~
Employers must complete Form 1-9 to document verification of the identity and employment authorization of each new
employee (both citizen and noncitizen) hired after November 6, 1986, to work in the United States. In the Commonwealth
of the Northern Mariana Islands (CNMI), employers must complete Form 1-9 to document verification of the identity and
employment authorization of each new employee (both citizen and noncitizen) hired after November 27,2011. Employers
should have used Form 1-9 CNMI between November 28,2009 and November 27,2011.
\General btstrucfi(tils" ..
Employers are responsible for completing and retaining Form 1-9. For the purpose of completing this form, the term
"employer" means all employers, including those recruiters and referrers for a fee who are agricultural associations,
agricultural employers, or farm labor contractors.
Form 1-9 is made up of three sections. Employers may be fined if the form is not complete. Employers are responsible for
retaining completed forms. Do not mail completed forms to U.S. Citizenship and Immigration Services (USCIS) or
Immigration and Customs Enforcement (ICE).
Section 1. Employee lnfoftii~tion an~ Attestat~l,);ll";:
Newly hired employees must complete and sign Section 1 of Form 1-9 no later than the first day of employment.
Section 1 should never be completed before the employee has accepted ajob offer.
Provide the following information to complete Section I:
Name: Provide your full legal last name, first name, and middle initial. Your last name is your family name or
surname. If you have two last names or a hyphenated last name, include both names in the last name field. Your first
name is your given name. Your middle initial is the first letter of your second given name, or the first letter of your
middle name, if any.
Other names used: Provide all other names used, if any (including maiden name). If you have had no other legal
names, write "N/A."
Address: Provide the address where you currently live, including Street Number and Name, Apartment Number (if
applicable), City, State, and Zip Code. Do not provide a post office box address (P.O. Box). Only border commuters
from Canada or Mexico may use an international address in this field.
Date of Birth: Provide your date of birth in the mm/dd/yyyy format. For example, January 23,1950, should be
written as 01/2311950.
U.S. Social Security Number: Provide your 9-digit Social Security number. Providing your Social Security number
is voluntary. However, if your employer participates in E-Verify, you must provide your Social Security number.
E-mail Address and Telephone Number (Optional): You may provide your e-mail address and telephone
number. Department of Homeland Security (DHS) may contact you if DHS learns of a potential mismatch between
the information provided and the information in DHS or Social Security Administration (SSA) records. You may write
"N/A" if you choose not to provide this information.
Form 1-9 Instructions 03/08/13 N
EMPLOYERS MUST
87 RETAIN COMPLETED FORM 1-9
DO NOT MAIL COMPLETED FORM 1-9 TO ICE OR USC IS
Page I of9
All employees must attest in Section 1, under penalty of perjury, to their citizenship or immigration status by checking
one of the following four boxes provided on the form:
1. A citizen of the United States
2. A noncitizen national of the United States: Noncitizen nationals of the United States are persons born in American
Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen
nationals born abroad.
3. A lawful permanent resident: A lawful permanent resident is any person who is not a U.S. citizen and who resides
in the United States under legally recognized and lawfully recorded permanent residence as an immigrant. The term
"lawful permanent resident" includes conditional residents. If you check this box, write either your Alien Registration
Number (A-Number) or USCIS Number in the field next to your selection. At this time, the USCIS Number is the
same as the A-Number without the "A" prefix.
4. An alien authorized to work: If you are not a citizen or national of the United States or a lawful permanent resident,
but are authorized to work in the United States, check this box.
If you check this box:
a. Record the date that your employment authorization expires, if any. Aliens whose employment authorization does
not expire, such as refugees, asylees, and certain citizens of the Federated States of Micronesia, the Republic of the
Marshall Islands, or Palau, may write "N/A" on this line.
b. Next, enter your Alien Registration Number (A-Number)IUSCIS Number. At this time, the USCIS Number is the
same as your A-Number without the "A" prefix. If you have not received an A-NumberIUSCIS Number, record
your Admission Number. You can find your Admission Number on Form 1-94, "Arrival-Departure Record," or as
directed by USCIS or U.S. Customs and Border Protection (CPB).
(1) If you obtained your admission number from CBP in connection with your arrival in the United States, then
also record information about the foreign passport you used to enter the United States (number and country of
issuance).
(2) If you obtained your admission number from USCIS within the United States, or you entered the United States
without a foreign passport, you must write "N/A" in the Foreign Passport Number and Country ofIssuance
fields.
Sign your name in the "Signature of Employee" block and record the date you completed and signed Section 1. By signing
and dating this form, you attest that the citizenship or immigration status you selected is correct and that you are aware
that you may be imprisoned and/or fined for making false statements or using false documentation when completing this
form. To fully complete this form, you must present to your employer documentation that establishes your identity and
employment authorization. Choose which documents to present from the Lists of Acceptable Documents, found on the
last page of this form. You must present this documentation no later than the third day after beginning employment,
although you may present the required documentation before this date.
Preparer and/or Translator Certification
The Preparer and/or Translator Certification must be completed if the employee requires assistance to complete Section 1
(e.g., the employee needs the instructions or responses translated, someone other than the employee fills out the
information blocks, or someone with disabilities needs additional assistance). The employee must still sign Section I.
Minors and Certain Employees with Disabilities (Special Placement)
Parents or legal guardians assisting minors (individuals under 18) and certain employees with disabilities should review
the guidelines in the Handbookfor Employers: Instructionsfor Completing Form 1-9 (M-274) on www.uscis.gov/
1-9Central before completing Section 1. These individuals have special procedures for establishing identity if they cannot
present an identity document for Form 1-9. The special procedures include (1) the parent or legal guardian filling out
Section 1 and writing "minor under age 18" or "special placement," whichever applies, in the employee signature block;
and (2) the employer writing "minor under age 18" or "special placement" under List B in Section 2.
Fonn 1-9 Instructions 03/08113 N
88
Page 2 of9
Before completing Section 2, employers must ensure that Section I is completed properly and on time. Employers may
not ask an individual to complete Section I before he or she has accepted ajob offer.
Employers or their authorized representative must complete Section 2 by examining evidence of identity and employment
authorization within 3 business days of the employee's first day of employment. For example, if an employee begins
employment on Monday, the employer must complete Section 2 by Thursday of that week. However, if an employer hires
an individual for less than 3 business days, Section 2 must be completed no later than the first day of employment. An
employer may complete Form 1-9 before the first day of employment if the employer has offered the individual ajob and
the individual has accepted.
Employers cannot specify which document(s) employees may present from the Lists of Acceptable Documents, found on
the last page of Form 1-9, to establish identity and employment authorization. Employees must present one selection from
List A OR a combination of one selection from List B and one selection from List C. List A contains documents that
show both identity and employment authorization. Some List A documents are combination documents. The employee
must present combination documents together to be considered a List A document. For example, a foreign passport and a
Form 1-94 containing an endorsement of the alien's nonimmigrant status must be presented together to be considered a
List A document. List B contains documents that show identity only, and List C contains documents that show
employment authorization only. If an employee presents a List A document, he or she should not present a List B and List
C document, and vice versa. If an employer participates in E-Verify, the List B document must include a photograph.
In the field below the Section 2 introduction, employers must enter the last name, first name and middle initial, if any, that
the employee entered in Section I. This will help to identify the pages of the form should they get separated.
Employers or their authorized representative must:
1. Physically examine each original document the employee presents to determine if it reasonably appears to be genuine
and to relate to the person presenting it. The person who examines the documents must be the same person who signs
Section 2. The examiner ofthe documents and the employee must both be physically present during the examination
of the employee's documents.
2. Record the document title shown on the Lists of Acceptable Documents, issuing authority, document number and
expiration date (if any) from the original document(s) the employee presents. You may write "N/A" in any unused
fields.
If the employee is a student or exchange visitor who presented a foreign passport with a Form 1-94, the employer
should also enter in Section 2:
a. The student's Form 1-20 or DS-2019 number (Student and Exchange Visitor Information System-SEVIS Number);
and the program end date from Form 1-20 or DS-2019.
3. Under Certification, enter the employee's first day of employment. Temporary staffing agencies may enter the first day
the employee was placed in a job pool. Recruiters and recruiters for a fee do not enter the employee's first day of
employment.
4. Provide the name and title of the person completing Section 2 in the Signature of Employer or Authorized
Representative field.
5. Sign and date the attestation on the date Section 2 is completed.
6. Record the employer's business name and address.
7. Return the employee's documentation.
Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they should be
made for ALL new hires or reverifications. Photocopies must be retained and presented with Form 1-9 in case of an
inspection by DHS or other federal government agency. Employers must always complete Section 2 even if they
photocopy an employee's document(s). Making photocopies of an employee's document(s) cannot take the place of
completing Form 1-9. Employers are still responsible for completing and retaining Form 1-9.
Fonn I-9 Instructions 03/08113 N
89
Page 3 of9
Unexpired Documents
Generally, only unexpired, original documentation is acceptable. The only exception is that an employee may present a
certified copy of a birth certificate. Additionally, in some instances, a document that appears to be expired may be
acceptable if the expiration date shown on the face of the document has been extended, such as for individuals with
temporary protected status. Refer to the Handbook/or Employers: Instructions/or Completing Form 1-9 (M-274) or 1-9
Central (www.uscis.gov/l-9Central) for examples.
Receipts
If an employee is unable to present a required document (or documents), the employee can present an acceptable receipt in
lieu of a document from the Lists of Acceptable Documents on the last page of this form. Receipts showing that a person
has applied for an initial grant of employment authorization, or for renewal of employment authorization, are not
acceptable. Employers cannot accept receipts if employment wi11last less than 3 days. Receipts are acceptable when
completing Form 1-9 for a new hire or when reverification is required.
Employees must present receipts within 3 business days of their first day of employment, or in the case of reverification,
by the date that reverification is required, and must present valid replacement documents within the time frames described
below.
There are three types of acceptable receipts:
1. A receipt showing that the employee has applied to replace a document that was lost, stolen or damaged. The
employee must present the actual document within 90 days from the date of hire.
2. The arrival portion of Form 1-94/1-94A with a temporary 1-551 stamp and a photograph of the individual. The
employee must present the actual Permanent Resident Card (Form 1-551) by the expiration date of the temporary
1-551 stamp, or, if there is no expiration date, within I year from the date of issue.
3. The departure portion of Form 1-94/1-94A with a refugee admission stamp. The employee must present an unexpired
Employment Authorization Document (Form 1-766) or a combination of a List B document and an unrestricted Social
Security card within 90 days.
When the employee provides an acceptable receipt, the employer should:
1. Record the document title in Section 2 under the sections titled List A, List B, or List C, as applicable.
2. Write the word "receipt" and its document number in the "Document Number" field. Record the last day that the
receipt is valid in the "Expiration Date" field.
By the end of the receipt validity period, the employer should:
1. Cross out the word "receipt" and any accompanying document number and expiration date.
2. Record the number and other required document information from the actual document presented.
3. Initial and date the change.
See the Handbook/or Employers: Instructions/or Completing Form 1-9 (M-274) at www.uscis.govlI-9Central for more
information on receipts.
Employers or their authorized representatives should complete Section 3 when reverifying that an employee is authorized
to work. When rehiring an employee within 3 years of the date Form 1-9 was originally completed, employers have the
option to complete a new Form 1-9 or complete Section 3. When completing Section 3 in either a reverification or rehire
situation, if the employee's name has changed, 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.
Fonn 1-9 Instructions 03/0811 3 N
90
Page 4 of9
Some employees may write "N/A" in the space provided for the expiration date in Section I if they are aliens whose
employment authorization does not expire (e.g., asylees, refugees, certain citizens of the Federated States of Micronesia,
the Republic of the Marshall Islands, or Palau). Reverification does not apply for such employees unless they chose to
present evidence of employment authorization in Section 2 that contains an expiration date and requires reverification,
such as Form 1-766, Employment Authorization Document.
Reverification applies if evidence of employment authorization (List A or List C document) presented in Section 2
expires. However, employers should not reverify:
1. U.S. citizens and noncitizen nationals; or
2. Lawful permanent residents who presented a Permanent Resident Card (Form 1-551) for Section 2.
Reverification does not apply to List B documents.
Ifboth Section I and Section 2 indicate expiration dates triggering the reverification requirement, the employer should
reverify by the earlier date.
For reverification, an employee must present unexpired documentation from either List A or List C showing he or she is
still authorized to work. Employers CANNOT require the employee to present a particular document from List A or List
C. The employee may choose which document to present.
To complete Section 3, employers should follow these instructions:
1. Complete Block A if an employee's name has changed at the time you complete Section 3.
2. Complete Block B with the date of rehire if you rehire an employee within 3 years of the date this form was originally
completed, and the employee is still authorized to be employed on the same basis as previously indicated on this form.
Also complete the "Signature of Employer or Authorized Representative" block.
3. Complete Block C if:
a. The employment authorization or employment authorization document of a current employee is about to expire and
requires reverification; or
h. You rehire an employee within 3 years of the date this form was originally completed and his or her employment
authorization or employment authorization document has expired. (Complete Block B for this employee as well.)
To complete Block C:
a. Examine either a List A or List C document the employee presents that shows that the employee is currently
authorized to work in the United States; and
h. Record the document title, document number, and expiration date (if any).
4. After completing block A, B or C, complete the "Signature of Employer or Authorized Representative" block,
including the date.
For reverification purposes, employers may either complete Section 3 of a new Form 1-9 or Section 3 of the previously
completed Form 1-9. Any new pages of Form 1-9 completed during reverification must be attached to the employee's
original Form 1-9. If you choose to complete Section 3 ofa new Form 1-9, you may attach just the page containing
Section 3, with the employee's name entered at the top of the page, to the employee's original Form 1-9. If there is a
more current version of Form 1-9 at the time of reverification, you must complete Section 3 of that version of the form.
There is no fee for completing Form 1-9. This form is not filed with USCIS or any government agency. Form 1-9 must be
retained by the employer and made available for inspection by U.S. Government officials as specified in the "USCIS
Privacy Act Statement" below.
U'»?/? :
,
"'// I
For more detailed information about completing Form 1-9, employers and employees should refer to the Handbook/or
Employers: Instructions/or Completing Form 1-9 (M-274).
Form 1-9 Instructions 03/08113 N
91
Page 5 of9
You can also obtain infonnation about Fonn 1-9 from the USCIS Web site at www.uscis.gov/r-9Central, bye-mailing
uscrs at [email protected], or by calling 1-888-464-4218. For TDD (hearing impaired), call 1-877-875-6028.
To obtain USCIS fonns or the Handbookfor Employers, you can download them from the USCIS Web site at www.uscis.
gov/fonns. You may order USCIS fonns by calling our toll-free number at 1-800-870-3676. You may also obtain fonns
and infonnation by contacting the USCIS National Customer Service Center at 1-800-375-5283. For TDD (hearing
impaired), call 1-800-767-1833.
Infonnation about E-Verify, a free and voluntary program that allows participating employers to electronically verify the
employment eligibility of their newly hired employees, can be obtained from the USCIS Web site at www.dhs.gov/EVerifY, bye-mailing USCIS at [email protected] or by calling 1-888-464-4218. For TDD (hearing impaired), call
1-877-87 5-6028.
Employees with questions about Fonn 1-9 and/or E-Verify can reach the USCIS employee hotline by calling
1-888-897-7781. For TDD (hearing impaired), call 1-877-875-6028.
Photocopying and Retaining Form 1-9
A blank Fonn 1-9 may be reproduced, provided all sides are copied. The instructions and Lists of Acceptable Documents
must be available to all employees completing this fonn. Employers must retain each employee's completed Fonn 1-9 for
as long as the individual works for the employer. Employers are required to retain the pages of the fonn on which the
employee and employer enter data. If copies of documentation presented by the employee are made, those copies must
also be kept with the fonn. Once the individual's employment ends, the employer must retain this fonn for either 3 years
after the date of hire or 1 year after the date employment ended, whichever is later.
Fonn 1-9 may be signed and retained electronically, in compliance with Department of Homeland Security regulations at
8 CFR 274a.2.
AUTHORITIES: The authority for collecting this infonnation is the Immigration Refonn and Control Act of 1986,
Public Law 99-603 (8 USC 1324a).
PURPOSE: This infonnation is collected by employers to comply with the requirements ofthe Immigration Refonn and
Control Act of 1986. This law requires that employers verify the identity and employment authorization of individuals
they hire for employment to preclude the unlawful hiring, or recruiting or referring for a fee, of aliens who are not
authorized to work in the United States.
DISCLOSURE: Submission of the infonnation required in this fonn is voluntary. However, failure of the employer to
ensure proper completion of this fonn for each employee may result in the imposition of civil or criminal penalties. In
addition, employing individuals knowing that they are unauthorized to work in the United States may subject the
employer to civil and/or criminal penalties.
ROUTINE USES: This infonnation will be used by employers as a record of their basis for detennining eligibility of an
employee to work in the United States. The employer will keep this fonn and make it available for inspection by
authorized officials of the Department of Homeland Security, Department of Labor, and Office of Special Counsel for
Immigration-Related Unfair Employment Practices.
IPapetworlc. Reduction Act
An agency may not conduct or sponsor an infonnation collection and a person is not required to respond to a collection of
infonnation unless it displays a currently valid OMB control number. The public reporting burden for this collection of
infonnation is estimated at 35 minutes per response, including the time for reviewing instructions and completing and
retaining the fonn. Send comments regarding this burden estimate or any other aspect of this collection of infonnation,
including suggestions for reducing this burden, to: U.S. Citizenship and Immigration Services, Regulatory Coordination
Division, Office of Policy and Strategy, 20 Massachusetts Avenue NW, Washington, DC 20529-2140; OMB No.
1615-0047. Do not mail your completed Form 1-9 to this address.
FOnTI 1-9 Instructions 03/08113 N
92
Page 6 of9
Employment Eligibility Verification
USCIS
Department of Homeland Security
U.S. Citizenship and Immigration Services
OMS No. 1615-0047
Expires 03/3 1/2016
Form 1-9
~START HERE. Read instructions carefully before completing this form. The instructions must be available during completion ofthis form.
ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which
document(s) they will accept from an employee. The refusal to hire an individual because the documentation presented has a future
expiration date may also constitute illegal discrimination.
Section 1. Employee Information and Attestation (Employees must complete and sign Section 1 of Form 1-9 no later
than the first day of employment; but not before accepting a job offer,)
Last Name (Family Name)
Address (Street Number and Name)
Date of Birth (mmiddlyyyy)
Middle Initial Other Names Used (if any)
First Name (Given Name)
Apt. Number
U.S. Social Security Number
D-O-I
,
State
City or Town
Zip Code
Telephone Number
E-mail Address
1
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):
o A citizen of the United States
o A noncitizen national of the United States (See
o A lawful permanent resident (Alien Registration Number/USCIS Number): _ _ _ _ _ _ _ _ _ __
o An alien authorized to work until (expiration date, if applicable, mm/dd/yyyy) _ _ _ _ _ _ _ . Some aliens may write "N/A" in this field.
instructions)
(See instructions)
For aliens authorized to work, provide your Alien Registration Number/USC/S Number OR Form 1-94 Admission Number:
1. Alien Registration Number/USCIS Number: _ _ _ _ _ _ _ _ _ _ __
3-D Barcode
Do Not Write in This Space
OR
2. Form 1-94 Admission Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
If you obtained your admission number from CSP in connection with your arrival in the United
States, include the following:
Foreign Passport Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Country of Issuance: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Some aliens may write "N/A" on the Foreign Passport Number and Country of Issuance fields. (See instructions)
ISignature of Employee:
IDate (mmiddlyyyy):
Preparerand/or Translator Certification(l'o be cor!!plefed and signed ifStJcuon 1 ;s 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.
Date (mm/ddlyyyy):
Signature of Preparer or Translator:
Last Name (Family Name)
First Name (Given Name)
Address (Street Number and Name)
Form 1-9 03108113 N
City or Town
93
State
Zip Code
Page 7 of9
Section 2. Employer or Authorized Representative Review and 'Verification
(Employers or their authorized representative must complete and sign Sect/on 2 within 3 buSiness days of the employee's first day of employment. You
must physically examine one document from List A OR examine 8 combination of one document from List B and one document from List C as listed on
the "Lists of Acceptable Documents" on the next page of this fomi./Fof each document you review. record the following infonnat/on: document title,
"f
issuing authority, document number, Bnd'8>cpirationdate, if any.)
Employee Last Name, First Name and Middle Initial from Section 1:
List A
OR
Identity and Employment Authorization
AND
List B
List C
Employment Authorization
Identity
Document Title:
Document Title:
Issuing Authority:
Issuing Authority:
Issuing Authority:
Document Number:
Document Number:
Document Number:
Expiration Date (if any)(mmiddlyyyy):
Expiration Date (if any)(mmiddlyyyy):
Expiration Date (if any)(mmiddlyyyy):
Document Title:
r;J
Document Title:
Issuing Authority:
Document Number:
Expiration Date (if any)(mmiddlyyyy):
I:"
,,;
fl·..
3-0 Barcode
Do Not Write in This Space
["i
Document Title:
t:"
Issuing Authority:
Document Number:
Expiration Date (if any)(mmiddlyyyy):
Certification
I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the
above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the
employee is authorized to work in the United States.
(See instructions for exemptions.)
The employee's first day of employment (mm/dd/yyyy)'
Signature of Employer or Authorized Representative
Last Name (Family Name)
ITitle of Employer or Authorized Representative
Date (mmiddlyyyy)
First Name (Given Name)
Employer's Business or Organization Name
Employer's Business or Organization Address (Street Number and Name) City or Town
State
Zip Code
Section 3. Reverification and Rehires (To be c(j'fifpleted and signed by employer or authorized representative.)
A. New Name (if applicable) Last Name (Family Name) First Name (Given Name)
I
Middle Initial B. Date of Rehire (if applicable) (mmidd/yyyy):
C. If employee's previous grant of employment authorization has expired, provide the information for the document from List A or List C the employee
presented that establishes current employment authorization in the space provided below.
Document Title:
Document Number:
Expiration Date (if any)(mmidd/yyyy):
I attest, under penalty of perjury, that to the best of my knowledge, this employee is authorized to work in the United States, and if
the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual.
Signature of Employer or Authorized Representative:
Form 1-9 03108113 N
Date (mmiddlyyyy):
94
Print Name of Employer or Authorized Representative:
Page 8 of9
LISTS OF ACCEPTABLE DOCUMENTS
All documents must be UNEXPIRED
Employees may present one selection from List A
or a combination of one selection from List B and one selection from List C.
Documents that Establish
Both Identity and
Employment Authorization
AND
1. Driver's license or 10 card issued by a
2. Permanent Resident Card or Alien
Registration Receipt Card (Form 1-551) r~;;;
~;
State or outlying possession of the
United States provided it contains a
photograph or information such as
name, date of birth, gender, height, eye
color, and address
+-----------------------------~
'.~2. 10 card issued by federal, state or local
4. Employment Authorization Document' i,;
that contains a photograph (Form:,
1-766)
5. For a nonimmigrant alien authorized
to work for a specific employer
because of his or her status:
Documents that Establish
Employment Authorization
Documents that Establish
Identity
1. U.S. Passport or U.S. Passport Card
3. Foreign passport that contains a
temporary 1-551 stamp or temporary
1-551 printed notation on a machinereadable immigrant visa
LlSTC
LlSTB
LIST A
government agencies or entities,
provided it contains a photograph or
information such as name, date of birth,
gender, height, eye color, and address
3. School 10 card with a photograph
.1(
4. Voter's registration card
1. A Social Security Account Number
card, unless the card includes one of
the following restrictions:
(1) NOT VALID FOR EMPLOYMENT
(2) VALID FOR WORK ONLY WITH
INS AUTHORIZATION
(3) VALID FOR WORK ONLY WITH
DHS AUTHORIZATION
2. Certification of Birth Abroad issued
by the Department of State (Form
FS-545)
3. Certification of Report of Birth
issued by the Department of State
:1!)':]_5---------------l
~
(Form DS-1350)
U.S. Military card or draft record
4. Original or certified copy of birth
a. Foreign passport; and
b. Form 1-94 or Form 1-94A that has:. 6. Military dependent's 10 card
certificate issued by a State,
the following:
b~~·;.;t-7-.--U--S-C-----G------------M--·-----i
county, municipal authority. or
,i::\%1
• • oast uard Merchant armer
territory of the United States
(1) The same name as the passport; '.
Card
bearing an official seal
and~1:t8~.~~~~--~~----~--~----~--------------~
Native American tribal document
5. Native American tribal document
(2) An endorsement of the alien's
nonimmigrant status as long as
9. Driver's license issued by a Canadian
6. U.S. Citizen 10 Card (Form 1-197)
that period of endorsement has
government authority
not yet expired and t h e " . 1
7. Identification Card for Use of
proposed employment is not in ".~; For persons under age 18 who are
Resident Citizen in the United
conflict with any restrictions or 0,}\!
unable to present a document
States (Form 1-179)
limitations identified on the form. ~~i:
listed above:
8. Employment authorization
6. Passport from the Federated States of
document issued by the
10. School record or report card
Micronesia (FSM) or the Republic of
Department of Homeland Security
. 11. Clinic, doctor, or hospital record
the Marshall Islands (RMI) with Form
1-94 or Form 1-94A indicating
r"" :,:\\1-------------------------------1
nonimmigrant admission under the
~12. Day-care or nursery school record
Compact of Free Association Between
the United States and the FSM or RMI
~'
Illustrations of many of these documents appear in Part 8 of the Handbook for Employers (M-274).
Refer to Section 2 of the instructions, titled "Employer or Authorized Representative Review
and Verification," for more information about acceptable receipts.
Fonn \-9 03/08113 N
95
Page 9 of9
Instrucciones para la Verificaci6n de Elegihilidad de Empleo
Departamento de Seguridad Nacional
Servicio de Ciudadanfa e Inmigracion de Estados Unidos
USCIS
Formulario 1-9
OMB N.o 1615-0047
Vencimiento 31/03/2016
Lea todas las instrucciones cuidadosamente antes de completar este formulario.
Notificaci6n contra la discriminaci6n. Es ilegal discriminar a cualquier individuo autorizado a trabajar durante el proceso de
contratacion, despido, reclutamiento 0 recomendacion por honorario, 0 en Ia verificacion de elegibilidad de empleo (formulario
1-9 y E-Verify) utilizando como base la condicion de inmigracion 0 ciudadania, 0 el origen nacional de dicho individuo. Los
empleadores NO PUEDEN especificar que documentos aceptanin de un empleado. Negarse a contratar a un individuo debido a
que la documentacion presentada tiene una fecha de vencimiento futura tambien podria constituir un acto discriminatorio ilegal.
Para obtener mas informacion, Ilame a la Oficina del Consejero Especial sobre Pnicticas Injustas en el Empleo Relacionadas
con la Condicion de Inmigrante (OSC, por sus siglas en ingIes) al 1-800-255-7688 (empleados), 1-800-255-8155 (empleadores)
01-800-237-2515 (TDD), 0 visite www.justice.gov/crt/about/osc .
iCual . es el propOsito de tlSW formuiario'f .
"
,~>,,~
Los empleadores deben completar el Formulario 1-9 para documentar la verificaci6n de la identidad y la autorizaci6n de empleo de
cada empleado nuevo (ciudadano y no ciudadano) contratado despues del 6 de noviembre de 1986, para trabajar en los Estados
Unidos. En la Mancomunidad de las Islas Marianas del Norte (CNMI, por sus siglas en ingles), los empleadores deben completar el
Formulario 1-9 para documentar la verificaci6n de la identidad y la autorizaci6n de empleo de cada empleado nuevo (ciudadano y no
ciudadano) contratado despues del 27 de noviembre de 20 11. Los empleadores deberian haber usado el Formulario 1-9 CNMI entre el
28 de noviembre de 2009 y el 27 de noviembre de 2011.
Los empleadores son responsables de completar y conservar el Formulario 1-9. A efectos de completar este formulario, el
termino "empleador" se refiere a todos los empleadores, incluidos aquellos reclutadores y agentes que refieren
trabajadores a cambio de honorarios que son asociaciones agricolas, empleadores agricolas y contratistas de trabajadores
agricolas.
EI Formulario 1-9 costa de tres secciones. Se puede multar a los empleadores si no completan el formulario. Los
empleadores son responsables de conservar los formularios completos. No envie por correo los formularios completos al
Servicio de Ciudadania e Inmigracion de los Estados Unidos (USe1S, por sus siglas en ingles) 0 al Servicio de
Inmigracion y Control de Aduanas (ICE).
Secci6'1f 1. Informacion y- declaracion
del empi~ad~'
.
.
Los empleados contratados recientemente deben completar y firmar la Secci6n I del Formulaflo -9 a mas tardar el primer dia de
trabajo. Nunca debe completarse la Secci6n I antes de que el empleado haya aceptado una oferta de trabajo.
Brinde la siguiente informaci6n para completar la Secci6n I:
Nom bre: Proporcione su apellido legal completo, nombre e inicial del segundo nombre. Su apellido es el nombre de familia. Si tiene
dos apellidos 0 un apellido con gui6n, agregue ambos en el encasillado del apellido. Su nombre es el nombre de pila. La inicial del
segundo nombre es la primera letra de su segundo nombre de pila, si tuviera.
Otros nombres en uso: Proporcione cualquier otro nombre que use 0 haya usado, si tuviera (incluyendo el apellido de soltero(a)). Si
no tiene ningun otro nombre legal, escriba "NID".
Direccion: Proporcione la direcci6n donde reside actualmente, incluido el nombre y numero de calle, el numero de apartamento (si
corresponde), la ciudad, el estado y el c6digo postal. No proporcione la direcci6n de una apartado de correo (P.O. Box). S610 los
viajeros frecuentes de Canada y Mexico pueden usar una direcci6n intemacional en este campo.
Fecha de nacimiento: Proporcione su fecha de nacimiento en formato mm/dd/aaaa. Por ejemplo, el23 de enero de
1950 deberia escribirse 01123/1950.
Numero de Seguro Social de los EE.UU.: Proporcione su numero de Seguro Social de 9 digitos. Proporcionar su numero de Seguro
Social es voluntario. No obstante, si su empleador participa en E-Verify, usted debe proporcionar el numero de Seguro Social.
Direccion de correo electr6nico y numero de telHono (opcional): Puede proporcionar su direcci6n de correo electr6nico y numero
de telefono. EI Departamento de Seguridad Nacional (DHS, por sus siglas en ingles) podria ponerse en contacto con usted si
descubre que hay una incompatibilidad potencial entre la informaci6n brindada y la informaci6n que se encuentra en los registros del
DHS 0 en la Administraci6n de Seguro Social (SSA). Puede escribir "NID" si escoge no proporcionar esta informaci6n.
InstrucclOnes para eI
Formulario 03/08/13 N
LOS EMPLEADORES DEBEN CONSERVAR EL FORMULARIOI-9 COMPLETO
NO ENViE POR CORREO EL FORMVLARIOI-9 COMPLETO AL ICE 0 USCIS
96
Pagina I de 9
Todos los empleados deben declarar en la Seccion I, bajo pen a de perjurio, su condicion de inmigracion
marcando una de los siguientes cuatro encasillados provistos en el formulario:
0
ciudadania
1. Ciudadano de los Estados Unidos
2. Nacional no ciudadano de los Estados Unidos: Los nacionales no ciudadanos de los Estados Unidos son personas
nacidas en Samoa Americana, ciertos ciudadanos anteriores del Territorio en Fideicomiso de las Islas del Pacifico y
ciertos hijos de nacionales no ciudadanos nacidos en el exterior.
3. Residente permanente legal: Un residente permanente legal es una persona que no es ciudadano de los EE. UU. Y
que reside en los Estados Unidos en condicion de residencia permanente registrada y reconocida legalmente como
inmigrante. EI terminG "residente permanente legal "incluye a los residentes condicionales. Si marca este encasillado,
escriba su Numero de Registro de Extranjero (A-Number) 0 su Numero USCIS en el campo que esta allado de su
seleccion. En este momento, el Numero USCIS es el mismo "A-Number" sin el prefijo "A".
4. Extranjero autorizado a trabajar: Si no es ciudadano 0 nacional de los Estados Unidos,
legal, pero esta autorizado a trabajar en los Estados Unidos, marque este encasillado.
0
un residente permanente
Si marca este encasillado:
a. Registre la fecha de vencimiento de su autorizacion de empleo, si hubiera. Los extranjeros cuya autorizacion de
empleo no tenga fecha de vencimiento, como los refugiados, asilados y ciertos ciudadanos de los Estados
Federados deMicronesia, la Republica de las Islas Marshall 0 Palau, pueden escribir "N/D" en esta linea.
b. A continuacion, ingrese su Numero de Registro de Extranjero (A-Number)/Numero USCIS. En este momento, el
Numero USCIS es el mismo que su numero A-Number sin el prefijo "A". Si no ha recibido un Numero A- I
USCIS, registre su numero de admision. Puede encontrar su numero de admision en el Formulario I-94, "Registro
de Entrada/Salida", 0 segun 10 informe el USCIS 0 la Oficina de Aduanas y Proteccion de Fronteras(CPB, por sus
siglas en ingles) de EE. UU.
(1) Si obtuvo su numero de admision de la CBP en conexion con su lIegada a los Estados Unidos, tam bien registre
la informacion del pasaporte extranjero que uso para ingresar a los Estados Unidos (numero y pals de emision).
(2) Si obtuvo su numero de admision del USCIS dentro de los Estados Unidos 0 si ingreso a los Estados Unidos
sin un pasaporte extranjero, debe escribir "NID" en los campos Numero de Pasaporte Extranjero y Pais de
Emision.
Firme con su nombre en el encasillado "Firma del empleado" y registre la fecha en la que completo y firmo la Seccion I.
AI firmar y fechar este formulario, declara que la condicion de inmigracion 0 ciudadania que selecciono es correcta y que
reconoce que puede ser encarcelado 0 multado por hacer declaraciones falsas 0 usar documentaci6n falsa cuando completa
este formulario. Para completar este formulario en su totalidad, debe presentar la documentacion de su empleador que
establezca su identidad y autorizacion de empleo. Escoja que documentos presentar de las Listas de Documentos
Aceptables, en la ultima pagina de este formulario. Debe presentar esta documentaci6n a mas tardar el tercer dia luego de
comenzar el empleo, aunque puede presentar la documentaci6n requerida antes de esta fecha.
Certificado del asesor
0
traductor
EI certificado del asesor 0 traductor debe estar completo si el empleado necesita asistencia para completar la Secci6n I ej.,
el empleado necesita que las instrucciones 0 respuestas se traduzcan, alguien distinto al empleado completa los
encasillados de informaci6n 0 aJguien con discapacidades necesita asistencia adicional). Aun asi el empleado debe firmar
la Secci6n I.
Menores y ciertos empleados con discapacidades (Ubicaci6n especial)
Los padres 0 tutores legales que asisten a menores (individuos menores de 18) y ciertos empleados con discapacidades
deben revisar las pautas en el Manual para empleadores, Guia para completar el Formulario J-9 (M-274) en www.uscis.
govlI-9Central antes de completar la Seccion 1. Estos individuos tienen procedimientos especiales para establecer la
identidad si no pueden presentar un documento de identidad para el Formulario 1-9. Los procedimientos especiales
incluyen (1) que los padres 0 tutores legales completen la Seccion I y que escriban "menor de 18 afios" 0 "ubicacion
especial", 10 que aplique, en el encasillado de firma del empleado; y (2) que el empleado escriba "men or de 18 afios" 0
"ubicacion especial" en la Lista B en la Seccion 2.
Pagina2 de 9
Instrucciones para el formulario 1-9 03/08/13 N
97
Antes de completar la Secci6n 2, los empleadores deben garantizar que se haya completado la Secci6n I de manera correcta y
en el tiempo adecuado. Los empleadores no pueden solicitar a un individuo que complete la Secci6n 1 antes de que haya
aceptado la oferta de trabajo.
Los empleadores 0 sus representantes autorizados deben completar la Secci6n 2 examinando la evidencia de identidad y
autorizaci6n de empleo dentro de los tres dias habiles luego del primer dia de trabajo del empleado. Por ejemplo, si un
empleado comienza a trabajar un lunes, el empleador debe completar la secci6n 2 para el jueves de esa semana. Sin embargo, si
un empleador contrata a un individuo por menos de tres dias habiles, la Secci6n 2 se debe completar a mas tardar durante el
primer dia de trabajo. Un empleador puede completar el Formulario 1-9 antes del primer dia de trabajo si el empleador Ie ha
ofrecido un trabajo al individuo y este ha aceptado.
Los empleadores no pueden especificar que documentos los empleados deben presentar de las Listas de Documentos Aceptables,
que se encuentra en la ultima pagina del Formulario 1-9, para establecer la identidad y autorizaci6n de empleo. Los empleados
deben presentar una selecci6n de la Lista A 0 una combinaci6n de una selecci6n de la Lista B y una selecci6n de la Lista C. La
Lista A contiene documentos que muestran tanto la identidad como la autorizaci6n de empleo. Algunos de los documentos de la
Lista A son documentos combinados. EI empleado puede presentar juntos los documentos combinados para que sean
considerados documentos de la Lista A. Por ejemplo, un pasaporte extranjero y un Formulario I-94 que tenga la aprobaci6n de la
condici6n de no inmigrante se deben presentar juntos para ser considerado un documento de la Lista A. La Lista B contiene
documentos que demuestran s610 la identidad y la Lista C contiene documentos que demuestran solo la autorizaci6n de empleo.
Si un empleado presenta un documento de la Lista A, no debe presentar un documento de la Lista B y la Lista C, y viceversa.
Si un empleador participa en E-Verify, el documento de la Lista B debe inC\uir una fotografia.
En el area debajo de la introducci6n ala Secci6n 2, los empleadores deben ingresar el apellido, nombre e inicial del
segundo nombre, si hubiera, que el empleado ingres6 en la Secci6n 1. Esto ayudara a identificar las paginas del formulario
si se separaran.
Los empleadores 0 sus representantes autorizados deben:
1. Analizar fisicamente cada documento original que el empleado presente para determinar si aparenta ser
razonablemente genuino y si se refiere a la persona que 10 presenta. La persona que analiza los documentos debe ser la
misma persona que firma la Secci6n 2. EI examinador de los documentos y el empleado deben estar fisicamente
presentes durante el examen de los documentos del empleado.
2. Registrar el titulo del documento que se muestra en las Listas de Documentos Aceptables, la autoridad emisora, el
numero de documento y la fecha de vencimiento (si hubiese) de los documentos origin ales que el empleado presenta.
Puede escribir "NID" en cualquier encasillado que no use.
Si el empleado es un estudiante 0 visitante de intercambio que present6 un pasaporte extranjero junto con un
Formulario I-94, el empleador tam bien debera ingresar en la Secci6n 2:
a. EI Formulario 1-20 del alumno 0 el numero del Formulario DS-20 19 (Sistema de Informaci6n de Estudiantes y
Visitantes de Intercambio: Numero SEVIS) y la fecha de finalizaci6n del program a del Formulario 1-20 0 DS-2019.
3. Bajo certificaci6n, ingresar el primer dia de trabajo del empleado. Las agencias de empleo temporal pueden ingresar el
primer dia en que se inc\uy6 al empleado en el cuerpo de trabajo. Los reclutadores y reclutadores por honorarios no
ingresan el primer dia de trabajo del empleado.
4. Proporcionar el nombre y el cargo de la persona que completa la Secci6n 2 en el campo firma del empleadoro
representante autorizado.
5. Firmar y fechar la dec1araci6n en el dia en que se complet6 la Secci6n 2.
6. Registrar el nombre y la direcci6n de la empresa del empleador.
7. Devolver la documentaci6n del empleado.
Los empleadores pueden, sin obligaci6n, sacar fotocopias de los documentos presentados. Si se hacen fotocopias, se
deben hacer para TODAS las nuevas contrataciones 0 las verificaciones que se repitan. Las fotocopias se deben conservar
y presentar con el Formulario 1-9 en caso de que haya una inspeccion de DHS u otra agencia gubemamental federal. Los
empleadores siempre deben completar la Secci6n 2 aun si sacan fotocopias a los documentos del empleado. Sacar
fotocopias de los documentos de un empleado no reemplaza la necesidad de completar el Formulario 1-9. Los empleados
siguen siendo responsables de completar y conservar el Formulario 1-9.
Instrucciones para el fonnulario 1-9 03/08/13 N
Pagina3 de 9
98
Documentos vigentes
Por 10 general, s610 se ace pta la documentaci6n original vigente. La (mica excepci6n es que un empleado pueda presentar
una copia certificada de un certificado de nacimiento. Ademas, en algunos casos, un documento que parezca vencido
puede ser aceptable si la fecha de vencimiento que se muestra en el anverso del documento se ha extendido, como para
individuos con estatus de protecci6n temporal. Consulte el Manual para empleadores, Guia para completar el Formulario
/-9 (M-274) 0 la Central 1-9 (www.uscis.gov/l-9Central) para obtener ejemplos.
Recibos
Si un empleado no puede presentar un documento requerido (0 documentos), el empleado puede presentar un recibo
aceptable en lugar de un documento de las Listas de Documentos Aceptables en la ultima pagina de este formulario. Los
recibos que demuestran que una persona ha solicitado una autorizaci6n laboral 0 una renovaci6n de la autorizaci6n laboral
no son aceptables. Los empleadores no pueden aceptar recibos si el empleo durara menos de tres dias en el empleo. Los
recibos son aceptables cuando se completa el Formulario 1-9 para una nueva contrataci6n 0 cuando se requiere volver a
verificar.
Los empleadores deben presentar los recibos dentro de los tres dias habiles desde el primer dia de trabajo 0, en el caso de
las verificaciones que se vuelvan a hacer, para la fecha en la que esta se requiere; adem as debe presentar los documentos
de reemplazo validos dentro de los plazos que se describen a continuaci6n.
Hay tres tipos de recibos aceptables:
1. Un recibo que demuestre que el empleado ha solicitado reemplazar un documento extraviado, robado 0 dailado. EI
empleado debe presentar el documento real dentro de los 90 dias desde la fecha de contrataci6n.
2. La secci6n de entrada del Formulario 1-94/1-94A con una estampilla 1-551 temporal y una fotografia de la persona. EI
empleado debe presentar la tarjeta de residencia permanente real (Formulario 1-551) para la fecha de vencimiento de
la estampilla 1-551 temporal 0, si no hay fecha de vencimiento, dentro del ailo desde la fecha de emisi6n.
3. La secci6n de salida del Formulario 1-94/1-94A con una estampilla de admisi6n de refugiado. EI empleado debe
presentar un Documento de Autorizaci6n de Empleo vigente (Formulario 1-766) 0 una combinaci6n de un documento
de la Lista B y una tarjeta de Seguro Social sin restricciones dentro de los 90 dias.
Cuando el empleado proporcione un recibo aceptable, el empleador debe realizar 10 siguiente:
1. Registrar el titulo del documento en la Secci6n 2, en las secciones denominadas Lista A, Lista B 0 Lista C, segun
corresponda.
2. Escribir la palabra "recibo" y el numero del documento en el encasillado "Numero de documento". Registrar el ultimo
dia de validez del recibo en el encasillado "Fecha de vencimiento".
AI final del periodo de validez del recibo, el empleado debe:
1. Tachar la palabra "recibo" y cualquier numero de documento adjunto y fecha de vencimiento.
2. Registrar el numero y otra informaci6n de documentaci6n requerida del documento real presentado.
3. Colocar las iniciales y la fecha en el cambio.
Consulte el Manual para empleadores, Guia para completar el Formulario /-9 (M-274) en www.uscis.gov/l-9Central
para obtener mas informaci6n sobre recibos.
Los empleadores 0 sus representantes autorizados deben completar la Secci6n 3 cuando vuelvan a verificar que un
empleado esta autorizado para trabajar. Cuando se vuelve a contratar a un empleado dentro de los 3 ailos de la fecha en la
que el Formulario 1-9 se complet6 originalmente, los empleadores tienen la opci6n de completar un nuevo Formulario 1-9
o completar la Secci6n 3. Cuando se completa la Secci6n 3 en una situaci6n de verificaci6n repetida 0 nueva contrataci6n,
si el nombre del empleado ha cambiado, registre el cambio de nombre en el encasillado A.
Para los empleados que proporcionaron una fecha de vencimiento de la autorizaci6n de empleo en la Secci6n 1, los
empleadores deben volver a verificar la autorizaci6n de empleo en la fecha provista 0 antes de esta.
Instrucciones para el fonnulario 1-9 03/08/13 N
Pagina4 de 9
99
Algunos empleados pueden escribir "N/D" en el espacio provisto para la fecha de vencimiento en la Seccion I si son
extranjeros cuya autorizacion de empleo no vence (ej., asilados, refugiados y ciertos ciudadanos de los Estados Federados
de Micronesia, la Republica de las Islas Marshall 0 Palau). No hay que volver a verificar dichos empleados a menos que
presenten evidencia de la autorizacion de empleo en la Seccion 2 que contenga una fecha de vencimiento y requiera otra
verificacion, como el Formulario 1-766, Documento de Autorizacion de Empleo.
Es necesario volver a verificar si vence la evidencia de autorizacion de empleo (documento de la Lista A
presentada en la Seccion 2. Sin embargo, los empleadores no deben volver a verificar:
1. Ciudadanos estadounidenses y nacionales no ciudadanos;
0
Lista C)
0
2. Residentes legales permanentes que presentaron una Tarjeta de Residente Permanente (Formulario \-551) para la Seccion.
No es necesario volver a verificar los documentos de la Lista B.
Si tanto la Seccion I como la Seccion 2 indican que las fechas de vencimiento requieren volver a verificar, el
empleador debe volver a verificar segun la fecha con mayor anterioridad.
Para volver a verificar, un empleado debe presentar documentacion vigente de la Lista A 0 la Lista C que muestre que aun
tiene autorizacion para trabajar. Los empleadores NO pueden requerir que el empleado presente un documento en
particular de la Lista A 0 la Lista C. EI empleado debe escoger que documento presentar.
Para completar la Seccion 3, los empleadores deben seguir estas instrucciones:
1. Completar el encasillado A si el nombre de un empleado ha cambiado para el momento en que complete la Seccion 3.
2. Completar el encasillado B con la fecha de la recontratacion si vuelve a contratar a un empleado dentro de los 3 af\os
desde la fecha en que se completo originalmente este formulario y si el empleado todavia tienen autorizacion para
trabajar en las mismas condiciones que se indicaron en este formulario. Ademas debe completar el encasillado "Firma
del empleador 0 representante autorizado".
3. Completar el encasillado C si:
a. La autorizacion de empleo 0 el documento de la autorizacion de empleo de un empleado actual esta por vencer y
requiere volver a verificar 0
b. Vuelve a contratar a un empleado dentro de los 3 af\os desde la fecha en la que este formulario se completo
originalmente 0 si su autorizacion de empleo 0 documento de autorizacion de empleo han vencido. (Tambien
complete el encasillado B para este empleado)
Para completar el encasillado C:
a. Examine el documento de la Lista A 0 la Lista C que presente el empleado que muestre que el empleado esta
actualmente autorizado para trabajar en los Estados Unidos; y
b. Registre el titulo del documento, el numero del documento y la fecha de vencimiento (si hubiese).
4. Luego de completar los encasillado A, B 0 C, complete el encasillado "Firma del empleador 0 representante
autorizado", incluida la fecha.
A los fines de volver a verificar, los empleadores pueden completar la Seccion 3 de un nuevo Formulario \-9 0 la
Secci6n 3 del Formulario 1-9 completado anteriormente. Cualquier pagina nueva del Formulario \-9 que se complete
durante la nueva verificacion debe adjuntarse al Formulario 1-9 original del empleado. Si escoge completar la Seccion
3 de un nuevo Formulario 1-9, puede adjuntar solamente la pagina que contiene la Seccion 3, incluido el nombre del
empleado en la parte superior de la pagina, al Formulario 1-9 original del empleado. Si hubiese una version mas
actual del Formulario 1-9 al momento de volver a verificar, debe completar la Seccion 3 de esa version del formulario.
,Cuil~~latarifadela SQU.tad?
No hay ninguna tarifa para completar el Formulario 1-9. Este formulario no se completa con el USCIS 0 cualquier otra agencia
gubemamental. EI empleador debe conservar el Formulario 1-9 y tenerlo disponible para la inspeccion de los funcionarios de
gobiemo de los EE. UU. segun se especifica en la "Declaraci6nde la Ley de Privacidad del USCIS" a continuacion.
Para obtener una informacion mas detail ada sobre como completar el Formulario 1-9, los empleadores y empleados deben
consultar el Manual para empleadores, Guia para completar el Formulario 1-9 (M-274).
Instrucciones para el fonnulario 1-9 03/08/13 N
Pagina 5 de 9
100
Tambien puede obtener informacion sobre el Formulario 1-9 en el sitio Web del USCIS en www.uscis.gov/l-9Central,
mandando un COITeo electronico a USCIS a [email protected] 0 Ilamando all-888-464-4218. Para TOO (personas con
problemas de audicion), Ilame all-877-875-6028.
Para obtener formularios del USCIS 0 el Manual para empleadores, descargandolos del sitio Web del USCIS en www.
uscis.gov. Puede solicitar formularios del USC IS llamando a nuestro numero gratuito all-800-870-3676. Tambien puede
obtener formularios e informacion poniendose en contacto con el Centro Nacional de Servicio al Cliente del USCIS al
1-800-375-5283. Para TOO (personas con problemas de audicion), lIame all-800-767-1833.
La informacion sobre E-Verify, un program a gratuito y voluntario que les permite a los empleadores participantes
verificar electronicamente la elegibiJidad de empleo de sus empleados recientemente contratados, se puede obtener del
sitio Web del USCIS en www.dhs.govlE-Verify, enviando un COITeo electronico a USCIS a [email protected] 0
lIamando all-888-464-4218. Para TOO (personas con problemas de audicion), lIame all-877-875-6028.
Los empleados que tengan preguntas sobre el Formulario 1-9 0 E-Verify pueden comunicarse con la linea directa del
empleado del USCIS lIamando al 1-888-897-7781. Para TOO (personas con problemas de audicion), lIame al
1-877-875-6028.
IFotocoPJado ycollservac~!, del FonnularleI:J:;:
Un Formulario 1-9 en blanco se puede reproducir, siempre y cuando se copien todos los lados. Todas las instrucciones y
Listas de Documentos Aceptables deben estar disponibles para los empleados que completen este formulario.Los
empleadores deben conservar cada Formulario 1-9 completado de un empleado durante el tiempo en que el individuo trabaje
para los empleadores. Los empleadores deben conservar las paginas del formulario en las que el empleado y el empleador
introducen datos. Si se hacen copias de la documentacion presentada por el empleado, dichas copias tambien deben
conservarse con el formulario. Una vez que finalice el empleo de un individuo, el empleador debe conservar este formulario
durante 3 aflos luego de la fecha de la contratacion 0 I aflo luego de la fecha en la que finalizo el empleo, 10 que suceda mas
~~ormulario 1-9 se puede firmar y conservar de manera electronica, de acuerdo con las reglamentaciones del
Departamento de Seguridad Nacional en 8 CFR 274a.2.
AUTORIDADES: La autoridad para la recopilacion de esta informacion es la Ley de Reforma y Control de la
Inmigracion de 1986, Ley Publica 99-603 (8 USC 1324a).
PROPOSITO: Esta informacion es recopilada por los empleadores para cumplir con los requisitos de la Ley de Reforma
y Control de la Inmigracion de 1986. Esta ley requiere que los empleadores verifiquen la identidad y autorizacion de
empleo de los individuos que contratan para descartar las contrataciones i1egales , 0 el rec1utamiento 0 referencia i1egal
por honorarios de extranjeros que no estan autorizados a trabajar en los Estados Unidos.
DIVULGACION: La presentacion de la informacion requerida en este formulario es voluntaria. Sin embargo, si el
empleador no garantiza el completado apropiado de este formulario para cada empleado, podria sufrir la imposicion de
sanciones civiles 0 penales. Ademas, el acto de contratar individuos sabiendo que no estan autorizados a trabajar en los
Estados Unidos puede hacer que el empleador enfrente sanciones civiles 0 penales.
USOS DE RUTINA: Esta informacion sera usada por los empleadores como registro de sus fundamentos para determinar
la elegibiJidad de un empleado para trabajar en los Estados Unidos. EI empleador conservara este formulario y 10 tendra
disponible para la inspeccion de funcionarios autorizados del Departamento de Seguridad Nacional, el Departamento del
Trabajo y la Oficina del Consejero Especial sobre Practicas Injustas en el Empleo Relacionadas con la Condicion de
Inmigrante.
Una agencia puede no Ilevar a cabo 0 patrocinar la recopilacion de informacion y no se requiere que una persona responda
ante una recopilacion de informacion a menos se muestre un numero de control de OMB actualmente valido. EI tiempo
que se requiere para esta recopilacion de informacion se estima en 35 minutos por respuesta, incluido el tiempo para
revisar las instrucciones, y completar y conservar el formulario. Puede enviar comentarios en relacion con este estimado
de tiempo 0 cualquier otro aspecto de la recopilacion de informacion, incluidas sugerencias para reducir este tiempo, a:
Serviciode Ciudadania e Inmigracion de Estados Unidos, Division de Coordinacion Regulacion,Oficina de Politicas y
Estrategias, 20 Massachusetts AvenueNW,Washington, DC 20529-2140; OMB N.oI615-0047. No envie por correo su
Formulario 1-9 a esta direcci6n.
Instrucciones para el formulario 1-9 03/08113 N
Pagina 6 de 9
101
USCIS
Formulario 1-9
Verificacion de Elegihilidad de Empleo
Departamento de Seguridad Nacional
Servicio de Ciudadania e Inmigracion de Estados Unidos
~ COM IENCE AQUf.
OMB N.o 1615-0047
Vencimiento 31/03/2016
Lea las instrucclones cludadosamente antes de completar esle formulario. Las Instrucclones deben estar dlsponlbles mlentras completa este formulario .
NOTIFICACION CONTRA LA DISCRIMINACION: Se considera ilegal discriminar a cualquier individuo autorizado a trabajar. Los
empleadores NO PUEDEN especificar que documentos aceptaran de parte de un empleado. Negarse a contratar a un individuo debido
a que la documentaci6n presentada tiene una fecha de vencimiento futura tambiem podria constituir un acto discriminatorio ilegal .
Secci6n 1.lnformaci6n y decJaraciO'Jtdel em'pleado
(Losempleados deben compJetaryfirmarJa Secci6n 1 del
_
,N,;·
Formulario 1-9 a mas tardar el primer dia de empieo, pero no antes de aceptar una oferta de trabajo).
Nomore (lvomore ae pI/a)
"""'al U'" ""IlUIIUU IIUIIIUI"
Otros nombres en uso (si hubiera)
Apellido (Nombre de familia)
,'~.,.
Oirecci6n (Nombre de la calle y numeral
Fecha de naCimlenlo(mmlddlaaaa)
Ia~eD:r
<J
Ciudad
N." de apt.
de los EE. UU
• ,"
/
0
,.'
"\;
Estado
pueblo
C6digo postal
Numero de telefono
I Oirecci6n de correo electr6nico
Soy consciente de que la ley federal impone multas 0 encarcelamiento por declaraciones falsas 0 el uso de documentos
falsos al completar este formulario.
Declaro, bajo pena de perjurio, que soy (marque uno de los siguientes):
o
o
o
o
Ciudadano de los Estados Unidos
Nacional no ciudadano de los Estados Unidos (consulte las instrucciones)
Residente permanente legal (Numero de Registro de Extranjero/Numero USCIS): _ _ _ _ _ _ _ _ _ _ __
Un extranjero autorizado a trabajar hasta (fecha de vencimiento, si corresponde, mmtddtaaaa) _ _ _ _ _ _ _ Algunos extranjeros
pueden escribir "NtO" en este campo. (con suite las instrucciones)
Para los extranjeros autorizados a trabajar, praporcione su Numera de Registro de Extranjera/Numera USCIS 0 el Numera de Admisi6n en el Formulario 1-94:
1. Numero de Registro de Extranjero/Numero USCIS : _ _ _ _ _ _ _ _ _ __
C6digo de barras 3-D
No escriba en este espacio
o
2. Numero de Admisi6n en el Formulario 1-94 : ______________
Si obtuvo su numero de admisi6n de la CPS en conexi6n con su lIegada a los Estados
Unidos, incluya 10 siguiente:
Numero de pasaporte extranjero: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Pais de emisi6n:
Algunos extranjeros pueden escribir "NtO" en los campos Numero de Pasaporte Extranjero y Pais de Emisi6n. (consulte las instrucciones)
IFecha (mmidd/aaaa):
IFirma del empleado:
Certificado delaslisor '0 traductor (Debe completarse yfirmafSl$ $I Ja Secci6n 1 tue realitada por una persona que no seael empleado).
Declaro, bajo pena de perjurio, que brinde asistencia para completar este formulario y que a mi mejor saber y entender la
informacion es verdadera y correcta.
IFecha (mm/dd/aaaa):
Firma del asesor 0 traductor:
Apellido (Nombre de familia)
Nombre (Nombre de pila)
ICiudad 0 pueblo
Oirecci6n (Nombre de la calle y numeral
Instrucciones para e1 formu1ario 1-9 03/08/13 N
IEstado IC6digo postal
Pagina 7 de 9
102
Secci6n 2. Revisi6n y verificaci6n delempleaCior 0 representante autorizado
(Los empleadores 0 sus i&presentantes autorizados'ideben completar y firmar la Secci6n 2 d8ntro de los 3 dlas hBbiles desde 81 primer dla de trabajo
de1empleado. Debe analizar fisi08mente un documento de la Ll$t~A c analizar una combinaclon de un diXumento de /a Usta B y un documento de la
Usta C, segun sa detal/a las "Ustas de Docume"t()s Aceptab/es" en la pr6ximapagina de'e{Ste formu/ario. Para cada documento que revise,
reg/sUe la siguienie informaci6n: titulo del documento,autoridad. 8fJ'isora, numerc)' del documentb y fache de vencimiento, s/ hub/era).
e"
Apellido, nombre e inicial del segundo nombre del empleado de la Secci6n 1:
Lista A
o
y
Lista 8
Lista C
Identidad y Autorizaci6n de Empleo
Titulo del documento:
' Titulo del documento:
Titulo del documento:
Autoridad emisora:
' Autoridad emisora:
Autoridad emisora:
Numero del documento:
Fecha de vencimiento (5i hubiera)(mmiddlaaaa):
Autorizaci6n de Empleo
Identidad
?
Numero del documento:
Numero del documento:
Fecha de vencimiento (5i hubiera)(mmiddlaaaa):
Fecha de vencimiento (5i hubiera)(mmiddlaaaa):
Titulo del documento:
"
Autoridad emisora:
Numero del documento:
Fecha de vencimiento (5i hubiera)(mm/dd/aaaa):
Titulo del documento:
C6digo de barras 3-D
No escriba en este espacio
"
Autoridad emisora:
Numero del documento:
«
Fecha de vencimiento (5i hubiera)(mm/dd/aaaa):
,",'
Certificado
Declaro, bajo pena de perjurio, que (1) he analiza do los documentos presentados por el empleado mencionado anteriormente,
(2) los documentos detail ados anteriormente parecen ser genuinos y relacionados al empleado mencionado y (3) a mi mejor
saber y entender, el empleado esta autorizado a trabajar en los Estados Unidos.
EI primer dfa de trabajo del empleado (mmldd/aaaa):
I
Firma del empleador 0 represantante autorizado
Apellido (Nombre de familia)
1
(Consulte las instrucciones para ver las excepciones.)
Fecha (mm/dd/aaaa)
INombre de la empresa u organizaci6n del empleador
Nombre (Nombre de pila)
Direcci6n de la empresa u organizacI6n del empleador (Nombre de la calle
y nlimero)
Cargo del empleador 0 representante autorizado
I
Ciudad
0
1
pueblo
Estado
lC6di 90 postal
Secci6n 3. Verificaciones repetidasy nuevas contrataclones (DfibJJ compfetars& porel &mpleadoro representante
A. Nuevo Nombre (si corresponde) Apellido (Nombre de familia) Nombre (Nombre de pila)
Inidal del segundo nombre
lB.
Fecha de nueva contrataCl6n (S< co"",~nd.) (mmlddles ..)
C. Si la autorizacion laboral previa de un empleado ha vencido, proporcione la informacion para el documento de la Lista A 0 Lista C que el empleado
presento que establezca la autorizacion de empleo actual en el espacio provisto a continuacion.
Titulo del documento:
Numero del documento:
IFecha de venclmlen\o
(51
hubiera)(mmlddlaaaa)
Declaro, bajo pena de perjurio, que a mi mejor saber y entender, este empleado estiJ autorizado para trabajar en los Estados Unidos
y si el empleado present6 documentos, los documentos que yo analice parecen ser genuinos y parecen referirse al individuo.
Firma del empleador 0 representante autorizado:
Fecha (mm/dd/aaaa):
Instrucciones para el formulario 1-9 03/08/13 N
Nombre en letra de imprenta del empleador 0 representante autonzado:
Pagina 8 de 9
103
LlSTAS DE DOCUMENTOS ACEPTABLES
Todos los documentos deben estar VIGENTES
Los empleados pueden presentar una seleccion de la Lista A
o una combinacion de una seleccion de la Lista B y una seleccion de la Lista C.
USTA A
Documentos que establecen
identidad y autorizaci6n de empleo
1. Pasaporte de Estados Unidos 0 Tarjeta
~:~
~~
:.6
..
identidad emitida por un estado 0 por un
territorio no incorporado de los Estados
Unidos siempre y cuando incluya una
fotografia 0 informaci6n como el nombre,
la fecha de nacimiento, el sexo, la altura,
el color de los ojos y la direcci6n
2. Tarjeta de Residencia Permanente
o Tarjeta de Recibo de Registro de
Extranjero (Formula rio 1-551)
3. Un pasaporte extranjero con una
estampilla temporal 1-551 0 una nota
temporal 1-551 impresa sobre un visado
de inmigraci6n legible con maquinas
4. Un Oocumento de Autorizaci6n de
Empleo que contenga una fotografia
(Formulario 1-766)
~~~~ 2. Una tarjeta de identidad emitida por
I~
~~~,
I
""
5. Para un extranjero no inmigrante
autorizado a trabajar en una situaci6n
especffica para un empleador debido a
su estado:
a. Un pasaporte extranjero; y
b. Un Formulario 1-94 0 un Formulario 194A que contenga 10 siguiente:
Documentos que establecen
identidad
.~;\:; 1. Una licencia de conducir 0 una tarjeta de
de Pasaporte de Estados Unidos
agencias 0 entidades gubernamentales
federales, estatales 0 locales siempre y
cuando incluya una fotografia 0
informaci6n como el nombre, la fecha de
nacimiento, el sexo, la altura, el color de
los ojos y la direcci6n
3. Una tarjeta de identidad escolar con una
fotografia
f~:~
.. 4. Una tarjeta del censo electoral
~~. 5. Una cartilia militar estadounidense 0 un
~
(1) EI mismo nombre que el
pasaporte y
USTA C
USTA B
registro de reclutamiento
16. U I tarjeta de identidad de empleado
militar
7. Una tarjeta de los Guardacostas de la
Marina Mercante Estadounidense
(2) Una aprobaci6n de la condici6n L'"
de no inmigrante del extranjero,
8. Un documento de pertenencia a una tribu
"I
siempre y cuando el periodo de
nativa estadounidense
dicha aprobaci6n no haya
9. Una licencia de conducir emitida por una
vencido y el empleo propuesto
;';~ autoridad gubernamental canadiense
no entre en conflicto con ninguna
de las restricciones 0
limitaciones establecidas en el
formula rio.
En caso de personas menores de 18
arios que no pueden presentar uno
de los documentos enumerados
previamente:
':j;~
~
6. Un pasaporte de los Estados Federados
r'~i 10. Un documento escolar 0 Ibreta de
de Micronesia (EFM) 0 de la Republica
. :,
calificaciones
de las Islas Marshall (RMI) con el
11. Un documento de
clinica, de un
Formulario 1-94 0 el Formulario 1-94A que
medico 0 de un hospital
indiquen la admisi6n de no inmigrante en 1\,
el Pacto de Libre Asociaci6n existente
12. Un documento de una guarderia 0 de un
entre Estados Unidos y EFM 0 RMI
jardin de infantes
I~~~
y
Documentos que establecen
autorizaci6n de empleo
ta~eta con el numero de Seguro
Social. a menos que la tarjeta tenga
una de las siguientes restricciones:
1. Una
(1) NOT VALID FOR EMPLOYMENT
(No valida para empleo)
(2) VALID FOR WORK ONLY WITH
INS AUTHORIZATION (Valida
para trabajar solamente con
autorizaci6n del INS)
(3) VALID FOR WORK ONLY WITH
OHS AUTHORIZATION (Valida
para trabajar solamente con
autorizaci6n del OHS)
2. Un certificado de nacimiento en el
extranjero emitido por el Departamento
de Estado (Formulario FS-545)
3. Un certifica::lo de informe de naci'niento
emitido por el Departamento de Estado
(Formula rio OS-1350)
4. Una copia certificada 0 versi6n original
de un certificado de nacimiento emitido
por un estado, pais, autoridad
municipal 0 territorio de los Estados
Unidos que presente un selio oficial
5. Un documento de pertenencia a una
tribu nativa estadounidense
6. Una Tarjeta de Identificaci6n de
Ciudadano de EE. UU. (Formulario
1-197)
7. Una tarjeta de identificaci6n para uso
del ciudadano residente en los
Estados Unidos (Formula rio 1-179)
8. Un Documento de Autorizaci6n de
Empleo emitido p~r el Departamento
de Seguridad Nacional
jt
Las ilustraciones de muchos de estos documentos aparecen en la Parte 8 del Manual para empleadores (M-274).
Consulte la Secci6n 2 de las instrucciones, denominada "Revisi6n y verificaci6n del empleador 0
representante autorizado", para obtener mas informaci6n sobre los recibos aceptables.
Instrucciones para el fonnulario 1-9 03/08113 N
Pagina 9 de 9
104
TIPS TO COMPLETE I-9 FORM
PREPARED BY
JULIE A. PACE
THE CAVANAGH LAW FIRM, P.A.
OVERVIEW
1.
DO NOT FILL OUT AN I-9 FORM UNTIL THE EMPLOYEE IS HIRED.
2.
Use the new I-9 Form. The revision date at the bottom of the I-9 Form is
03/08/13.
The I-9 Form is two pages and contains three separate and distinct sections:
a)
Section 1: Employee Information and Attestation (page 1)
b)
Section 2:
Employer or Authorized Representative Review and
Verification (page 2)
c)
Section 3: Reverification and Rehires (page 2)
These tips are designed to assist managers in properly filling out I-9 Forms. These tips do not
cover all of the rules and regulations, but provide some tips. Please refer to applicable rules and
regulations for requirements and more details. Please consult with legal counsel for individual
circumstances and questions.
TIPS FOR ENTIRE I-9 FORM:
(1)
Print the I-9 two-sided to avoid the pages becoming separated.
(2)
Use black or blue ink on the I-9 Form.
(3)
Do not use different color or type of ink in the same Section.
(4)
Do not have more than one handwriting in the same Section (unless person filling
out Section 2 is also preparer/translator).
(5)
Do not use pencil.
(6)
Expiration date of documents must be written as month/day/year (do not use
day/month/year).
(7)
DO NOT KEEP PHOTOCOPIES OF DOCUMENTS, unless otherwise
required by state law (e.g. Colorado) or by E-verify (e.g. permanent resident card,
EAD, U.S. Passport, etc.). Instead learn to complete the form correctly.
(8)
If a new form must be redone after an employee has worked at Company, the old
I-9 Form should be stapled to the new form and kept together.
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©2013 Julie A. Pace
602.322.4046
[email protected]
SECTION 1: EMPLOYEE INFORMATION AND ATTESTATION
(1)
The employee should complete Section 1. It is important to review Section 1
and have employee complete any missing information before completing
Section 2.
(2)
Highlight the sections for employee to fill out in Section 1 so employee does not
miss any boxes.
(3)
Section 1 of the I-9 Form must be completed on or before the employee’s first day
of work.
(4)
The employee's phone number and email address are OPTIONAL. If provided,
they may be used by USCIS to contact the individual about E-Verify tentative
nonconfirmation results.
(5)
The employee must do the following to complete Section 1:
(6)
a)
Enter personal information, including full name and address.
b)
Mark the appropriate checkbox to confirm employment eligibility.
c)
The employee should only fill out the information for the box checked:
either the alien registration or USCIS number for box 3 OR work
authorization expiration date and alien registration/USCIS number or the
I-94 admission number and foreign passport number for box 4.
d)
Employee should read, sign and date the form.
e)
If a preparer or translator assists the employee, the preparer/translator
should enter his or her name and address, signature, and date in the
appropriate spaces.
Additional Tips for Completing Section 1:
f)
Do not complete Section 1 for the employee unless you are serving as
translator/preparer.
g)
Section 1 must not have any missing information (however, recall that
phone number and email address are optional).
h)
If there is no middle name/initial or maiden name a dash should be
inserted by the employee.
i)
Make sure the address is complete, including city, state and zip code.
j)
Review the employee’s completed form and if anything is missing or
wrong have employee redo a new I-9 Form and start over.
k)
Do not ask for any document to substantiate the information provided by
the employee in Section 1.
l)
Make sure date is written as month/date/year.
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©2013 Julie A .Pace
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[email protected]
m)
Make sure employee has not signed or dated the translator/preparer
section.
n)
Make sure the employee signs and dates Section 1 in the proper spot.
o)
The employee’s name on Section 1 should match the name on the
documents provided for Section 2.
SECTION 2: EMPLOYER OR AUTHORIZED REPRESENTATIVE REVIEW AND
VERIFICATION
Section 2 of the I-9 Form must be completed within 3 business days of the date the person starts
working. It is the employee’s choice which documents he/she presents. Acceptable documents
are listed on the form included with this Section. All documents must be unexpired. The
documents presented by employees from the list of acceptable documents are used to establish
identity and work eligibility. The employer personally reviews the original documents,
completes Section 2, and signs and dates the I-9 Form.
An employee must present either an acceptable document from List A OR acceptable documents
from both List B and List C.

List A contains a list of acceptable documents that verify both identity and
work eligibility.
Only one document needs to be shown to complete Section 2 under the List A
column. DO NOT FILL ANYTHING IN UNDER THE LIST B OR LIST C
COLUMN IF THE EMPLOYEE SHOWS YOU A LIST A DOCUMENT.

List B contains a list of acceptable documents that verify identity; and

List C contains a list of acceptable documents that verify work eligibility.
The employee must show you a List B and a List C document and you need to
complete Section 2 under the List B and List C column.
The same person who is the employer representative must both review the original
documents and fill out and sign Section 2.
(1)
The employee chooses the documents to present to the employer.
(2)
For List A OR Lists B and C, the employer representative reviews the original
documents and records the following information for each one:
(3)

document title

issuing authority

document number

expiration date (if any)
If any field is not applicable (i.e. document does not have expiration date), put
N/A in that field.
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©2013 Julie A .Pace
602.322.4046
[email protected]
(4)
(5)
Under Certification, you record:

the employee’s start date (sometimes estimated)

your signature

your name and title

organization name and address

the date
Additional Tips for Completing Section 2:
a)
Make sure to list the employee’s name at the top of Section 2 exactly as it
appears in Section 1.
b)
Do not use whiteout.
c)
Do not cross out mistakes or scratch out mistakes.
d)
If a mistake occurs during completion of the form, start over with a new
form.
e)
Do not tell an employee what documents to produce but instead have the
employee review the list of acceptable documents and choose what
documents the employee wants to produce.
f)
If you use a List A document, DO NOT FILL OUT LIST B AND LIST
C DOCUMENTS.
g)
Your responsibility under Section 2 is to certify you examined the original
documents and they appeared genuine and reasonable.
h)
Your responsibility under Section 2 is to check to make sure the photo or
the description of the person reasonably matches the person showing the
documents to you (i.e. height, age, race or gender).
i)
The employee must present original unexpired documents.
j)
DO NOT ACCEPT PHOTOCOPIES OF DOCUMENTS.
ORIGINAL DOCUMENTS ARE ACCEPTABLE.
k)
If the employee cannot produce original documents to complete the I-9
Form, the employee cannot work at the Company.
l)
Do not accept SSNs that are 000-00-0000 OR 123-45-6789. Also, SSNs
that start with 9 are generally not acceptable.
m)
An application to obtain a SS card is not acceptable, but a document from
SSA indicating the person has applied for a replacement or lost SS card is
acceptable.
ONLY
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©2013 Julie A .Pace
602.322.4046
[email protected]
n)
It may be helpful to review the M-274 Handbook for Employers published
by DHS, which provides additional tips.
SECTION 3: REVERIFICATION AND REHIRES
Section 3 of the I-9 Form can be used for employment re-verification when an employee’s work
authorization expires, when an employee’s name changes (i.e., marriage or divorce), or when an
employee is rehired.
Section 3 of the I-9 Form, employment re-verification, must be completed when an employee’s
work authorization expires but he/she is currently eligible to work on a different basis or under a
new grant of work authorization. Re-verification must be completed on or before the expiration
date of the work authorization, as recorded in Section 1. Employers should develop a system to
remind employees 4 to 5 months prior of the expiration date that the employee needs new
authorization by the expiration date or the employee cannot continue to work for the company.
The employer does not need to re-verify US Passports, permanent resident cards, or drivers
licenses when they expire.
The employer must do the following to complete Section 3 (the same person must both review
the documents and fill out and sign Section 3):
(1)
The employee presents a document that reflects that the employee is authorized to
work in the U.S. (see List A or C).
(2)
Review the document and record the following information under Section 3:
a)
new name (if applicable)
b)
date of rehire (if applicable)
c)
document title
d)
document number
e)
expiration date (if any)
(3)
Sign and date Section 3.
(4)
Additional Tips to Complete Section 3:
a)
Document Title must be spelled out.
b)
The same document used to initially fill out the form does not need to be
shown. The employee can select any List A or C document.
c)
Complete Section 3 in its entirety.
d)
Only fill out Section 3 ONCE. Use a new I-9 Form for future updates.
e)
If work authorization expires again, fill out Section 3 of a new I-9 Form
and staple to old form.
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©2013 Julie A .Pace
602.322.4046
[email protected]
Julie A. Pace
602.322.4046
[email protected]
FLOW CHART REGARDING
I-9 AND E-VERIFY
The Cavanagh Law Firm
DAY 1
DAY 3
Hire Employee
Initial E-Verify Case Completed
DAY 10
(generally)
E-Verify Process
Complete
DAY 1 to DAY 3
Fully Complete Sections 1
& 2 of the Form I-9
“Employment
Authorized”
Further Action Notice
(Formerly known as
the “Tentative NonConfirmation”)
Resolve Case,
Print Confirmation
and Staple to I-9.
Employee unable
to provide
documents to
complete I-9.
Employee
completes I-9.
End
Process
Terminate
employment.
Print 2 Copies of
“Further Action Notice” Company and employee
sign both. Give one to
employee and staple
one to I-9.
Continue
checking
E-Verify
system for
different
response and
steps to
follow.
BY DAY 3
Open E-Verify
Case.
Employee does
not challenge.
End
Process
Terminate
employment Resolve case
unauthorized, print
case details and
staple to I-9.
*Refer to the E-Verify User Manual, MOU, and
USCIS for actual requirements.
Seek legal counsel as appropriate
1804786_2
“DHS Verification
in Process” or
“Case
Continuance”
End
Process
110
“SSA Final NonConfirmation”,
“DHS Employment
Unauthorized”,
“DHS No-Show” =
FINAL NONCONFIRMATION
Terminate
employment Resolve case
unauthorized,
print case
details and
staple to I-9.
Employee
challenges tentative
non-confirmation.
End
Process
Print 2 copies of Referral
Date Confirmation - Give
one to employee and
staple one to I-9.
THE CAVANAGH LAW FIRM, P.A.
HELPFUL STEPS TO COMPLY WITH REQUIREMENTS OF
I-9 AND E-VERIFY PROGRAM
BY JULIE A. PACE
602-322-4046
[email protected]
GENERAL TIPS
1.
Make sure to post the required E-Verify posters.
2.
Apply the process uniformly to all newly hired employees.
3.
Do not use on existing employees (unless required as a federal contractor).
4.
Do not use prior to hiring individual or as a screening tool.
5.
Do not terminate employment, refuse to provide training, refuse to provide
benefits, or otherwise take adverse action based on tentative nonconfirmation.
6.
Make sure the employee signs the Further Action Notice and make sure to
give the employee a copy of the Further Action Notice and Referral Date
Confirmation.
7.
The employer must allow the employee to keep working during the verification
process until a final nonconfirmation, unless the employment is terminated for a
reason other than the verification process.
8.
Contact E-Verify customer service: 888-464-4218 or [email protected]
STEP 1: TIMING TO COMPLETE E-VERIFY
1.
Complete Form I-9 verification process after the date of hire but within three (3)
business days after the employee’s first day of employment. Regulations require
the employee to complete Section 1 on the first day of employment but the
employer has three business days to complete the form.
2.
After completing the Form I-9 and within three (3) business days after
employee’s first day of employment, enter the information from Section 1 and
Section 2 of the Form I-9 into E-Verify by selecting “New Case” from the EVerify home page under "My Cases" on the left tool bar.
3.
On the next screen, select the employee’s citizenship status. Click continue. The
user will be prompted to indicate the documents that the employee provided to
complete Section 2 of the Form I-9. Check the appropriate document and click
next. On the next screen, enter the employee’s information from the Form I-9 and
submit the information. If the information entered does not automatically match
the SSA or DHS records, the system will ask you to check the information to
ensure it was accurately entered.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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4.
Keep in mind that:
(a)
If employee chooses to provide List B document, it must contain a
photograph.
(b)
Under I-9 rules, there is no requirement that the company retain copies of
the documents presented to complete the I-9 form.
(c)
There is an issue that arises regarding photocopies and E-Verify. The EVerify MOU states that employers (except employers using an E-Verify
Employer Agent) are required to keep photocopies of only Permanent
Resident Card, Form I-766 Employment Authorization Document, U.S.
Passport or Passport Card, or other documents used for the E-Verify Photo
Tool. Federal discrimination laws require employers to treat all new hires
in the same manner and may not discriminate or treat new hires differently
in the I-9 process based on citizenship. The USCIS has taken the position
that it is not discriminatory and does not violate the I-9 regulations for an
employer to keep copies of the documents used for the photo tool and
maintain a policy that it will not keep photocopies of any other I-9
supporting documents.
STEP 2: PHOTO MATCHING
1.
If the employee provided a Permanent Resident Card, Employment Authorization
Document, U.S. Passport, or U.S. Passport Card, the user you may be prompted to
verify the picture on the card against the picture in the DHS database using the
Photo Matching screen.
2.
The pictures should be exactly the same. If the picture does not match (allowing
for variances in color and gradation given the age of the photo, color settings on
computer monitor, etc), select “no” the photos do not match. You will receive a
“DHS Tentative Nonconfirmation” – go to Step 8.
STEP 3: COMPUTER RESPONSES AND POTENTIAL STEPS
1.
E-Verify will provide one of the following employment eligibility responses:
(a)
“Employment Authorized,” go to Step 4
(b)
“SSA Tentative Nonconfirmation,” go to Step 5
(c)
“DHS Verification in Process,” go to Step 6
(d)
"DHS Nonconfirmation," go to Step 7
STEP 4: EMPLOYMENT AUTHORIZED
1.
If E-Verify provides “Employment Authorized” response, check the first and last
names on the confirmation to ensure that they match employee’s name.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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[email protected]
(a)
2.
If the name returned on the “Employment Authorized” response does not
exactly match the employee’s name as entered, request additional
verification from the Case Details page by clicking “Request Name
Review.” Check the E-Verify system periodically for a response to your
request for additional verification. E-Verify should provide a response
within three business days.
(i)
If the response is “DHS Tentative Nonconfirmation,” go to Step 7.
(ii)
If the response is "Employment Authorized" and the name on the
confirmation matches the employee’s name, click “Close Case” in
E-Verify from case details screen.
Select “The employee
continues to work for the employer after receiving an Employment
Authorized Result,” and click “Continue.”
Finally, complete the process by:
(a)
printing the Case Details page (the confirmation)
(b)
stapling it to the Form I-9
(c)
filing it in I-9 file.
STEP 5: SSA TENTATIVE NONCONFIRMATION
1.
If E-Verify provides “SSA Tentative Nonconfirmation,” or "DHS Tentative
Nonconfirmation" then print two copies of the “Further Action Notice” (you
may select either to print a notice in the employee’s native language) and meet
privately with the employee to provide the notice to the employee and review it
with them.1
(a)
Employer and employee must both sign both copies of the “Further
Action Notice.”
(b)
Keep one copy of the signed “Further Action Notice” with employee’s
I-9 and give one copy to employee. If the employee is no longer
employed at the company or does not show up to meet with the employer
and therefore cannot sign the Further Action Notice, indicate this on the
notice, sign the employer representative section, and staple to the
employee’s I-9. Failure to provide an employee with the signed
“Further Action Notice” and right to contest can lead to
1
Anywhere that these instructions require the employer to print two copies of a document and have the employer
and employee sign both copies, the employer alternatively could print one copy, have the employee and employer
both sign the printed copy, photocopy the signed document, staple the original to the I-9, and then give a photocopy
of the signed document to the employee. The key is to ensure that the employee receives a signed copy of all the
documents and a signed copy is attached to the employee’s I-9. If the meeting with the employee is going to occur
somewhere where there is no copier available, it is better practice to print two copies so that the employee and
employer can both have a signed copy.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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discrimination charges. Therefore, it is important to have the employee
sign the Further Action Notice or to document the reasons you are unable
to do so if you are unable to do so.
(c)
Employee must choose to contest or not contest tentative nonconfirmation
and sign the Notice.
(i)
If employee does not contest, this acts as final nonconfirmation.
Go to Step 10.
(1)
(ii)
(d)
After discussing the Further Action Notice with the
employee, select “Confirm Employee Notification” in EVerify.
If the employee contests, select “Refer Case.” Print two copies of
the Referral Date Confirmation Provide a copy of the Referral
Date Confirmation to the employee and keep a copy with the
employee’s Form I-9.
Within ten (10) business days after initiating the referral (or 24 hours
after employee returns referral letter stamped by the SSA office or tells
you they have resolved the issue with the SSA, whichever is earlier), the
employer should check E-Verify for an update on the case result. If the
case has been updated, the E-Verify system will provide a notice on the
home screen that a case has been updated and needs action.
(i)
If E-Verify returns “Employment Authorized,” complete the
process by selecting "Close Case," selecting the appropriate case
closing statement, printing the Case Details page (the
confirmation), stapling it to the Form I-9, and filing it in I-9 file.
(ii)
If E-Verify returns “SSA Final Nonconfirmation,” go to Step 10.
(iii)
If E-Verify returns “SSA Case in Continuance,” go to Step 9.
(iv)
If E-Verify returns “DHS Verification in Process,” go to Step 6.
(v)
If E-Verify returns “DHS Tentative Nonconfirmation – (Photo
Tool Non-Match),” go to Step 8.
(vi)
If E-Verify returns “Review and Update Employee Data” then
review the information originally entered into E-Verify. If
information is correct click “Continue.” If it is incorrect, revise
and click “Continue.”
(vii)
If E-Verify returns “Employment Authorized,” go to Step 10.
(viii) If E-Verify returns “DHS Verification in process,” go to Section 6.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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(ix)
If E-Verify returns “DHS Tentative Nonconfirmation,” go to
Step 7.
(x)
If E-Verify returns “SSA Final Nonconfirmation,” go to Step 10.
STEP 6: DHS VERIFICATION IN PROCESS
1.
If E-Verify provides “DHS Verification in Process,” check the E-Verify system
periodically for a response from DHS. DHS should provide a response within
three business days, but it may take longer.
(a)
If the response is “Employment Authorized,” complete the process by
selecting "Close Case," selecting the appropriate case closing statement,
printing the Case Details page (the confirmation), stapling it to the Form I9, and filing it in I-9 file.
(b)
If the response is “DHS Tentative Nonconfirmation,” go to Step 7.
(c)
If the response is “DHS Case in Continuance,” go to Step 9.
STEP 7: DHS TENTATIVE NONCONFIRMATION
1.
If E-Verify provides “DHS Tentative Nonconfirmation,” then print two copies of
the “Further Action Notice” and meet with the employee to provide the notice to
the employee.
(a)
Employer and employee must both sign both copies of the “Further Action
Notice.”
(b)
Keep one copy of the signed “Further Action Notice” with employee’s
Form I-9 and give one copy to employee. If the employee is no longer
employed at the company or does not show up to meet with the employer
and therefore cannot sign the Further Action Notice, indicate this on the
notice, sign the employer representative section, and staple to the
employee’s I-9. Failure to provide an employee with the signed “Further
Action Notice” and right to contest can lead to discrimination charges.
Therefore, it is important to have the employee sign the Further Action
Notice or to document the reasons you are unable to do so if you are
unable to do so.
(c)
Employee must choose to contest or not contest tentative nonconfirmation
and sign the Notice. After meeting with the employee, select “Confirm
Employee Notification.”
(i)
If employee does not contest, this acts as Final Nonconfirmation.
Go to Step 10.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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(ii)
(d)
If employee contests, select “Refer Case,” then print two copies of
the Referral Date Confirmation, give one copy to the employee and
keep one copy of the referral notice with the employee’s I-9.
After the referral to DHS, occasionally check the E-Verify system for
updates. If the case has been updated, the E-Verify system will provide a
notice on the home screen that a case has been updated and needs action.
E-Verify should provide a response (it is possible that it could take more
than 10 ten days).
(i)
If E-Verify returns “Employment Authorized,” complete the
process by selecting "Close Case," selecting the appropriate case
closing statement, printing the Case Details page (the
confirmation), stapling it to the Form I-9, and filing it in I-9 file.
(ii)
If the response is “DHS Final Nonconfirmation” this is a Final
Nonconfirmation. Go to Step 10.
(iii)
If the response is “DHS No Show” this acts as a Final
Nonconfirmation. Go to Step 10.
(iv)
If the response is “DHS Case in Continuance,” go to Step 9.
STEP 8: DHS TENTATIVE NONCONFIRMATION (PHOTO NON-MATCH)
1.
If E-Verify provides “DHS Tentative Nonconfirmation: based on a photo not
matching, then print two copies of the “Further Action Notice” and meet with the
employee to provide the notice to the employee.
(a)
Employer and employee must both sign both copies of the “Further Action
Notice.”
(b)
Keep one copy of the signed “Further Action Notice” with employee’s
Form I-9 and give one copy to employee. If the employee is no longer
employed at the company or does not show up to meet with the employer
and therefore cannot sign the Further Action Notice, indicate this on the
notice, sign the employer representative section, and staple to the
employee’s Form I-9. Failure to provide an employee with the signed
“Further Action Notice” and right to contest can lead to discrimination
charges. Therefore, it is important to have the employee sign the Further
Action Notice or to document the reasons you are unable to do so if you
are unable to do so.
(c)
Employee must choose to contest or not contest tentative nonconfirmation
and sign the Notice. After meeting with the employee, “Confirm
Employee Notification” and click “Continue.”
(i)
If employee does not contest, this acts as Final Nonconfirmation.
Go to Step 10.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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(ii)
(d)
If employee contests, select “Refer Case,” then print two copies of
the Referral Confirmation Date, give a copy to the employee and
keep a copy with the employee’s I-9.
The company must send a photocopy of the documentation that the
employee provided to the company for verification to the USCIS.
(i)
The company may send the documents electronically by choosing
“Attach and submit copy of Employee’s Photo Document” from
the E-Verify system.
(ii)
The company can mail a copy of the document along with a copy
of the referral letter by selecting “Mail Copy of Employee’s Photo
Document” and mailing the documents by express mail to:
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
10 Fountain Plaza, 3rd Floor
Buffalo, NY 14202
Attn: Status Verification Unit-Photo Matching
(e)
After the referral to DHS, occasionally check the E-Verify system for
updates. If the If the case has been updated, the E-Verify system will
provide a notice on the home screen that a case has been updated and
needs action. E-Verify should provide a response (it is possible that it
could take more than 10 business days).
(i)
If E-Verify returns “Employment Authorized,” complete the
process by selecting "Close Case," selecting the appropriate case
closing statement, printing the Case Details page (the
confirmation), stapling it to the Form I-9, and filing it in I-9 file.
(ii)
If the response is “DHS Final Nonconfirmation” this is a Final
Nonconfirmation. Go to Step 10.
(iii)
If the response is “DHS No Show” this acts as a final
nonconfirmation. Go to Step 10.
(iv)
If the response is “DHS Case in Continuance,” go to Step 9.
STEP 9: CASE IN CONTINUANCE
(a)
If E-Verify provides “Case in Continuance” check the E-Verify system
periodically for a response from DHS or SSA.
(b)
If the response is “Employment Authorized,” complete the process by
selecting "Close Case," selecting the appropriate case closing statement,
printing the Case Details page (the confirmation), stapling it to the Form I9, and filing it in I-9 file.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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602.322-4046
[email protected]
(c)
If the response is “DHS Final Nonconfirmation” or “SSA Final
Nonconfirmation” this is a Final Nonconfirmation. Go to Step 10.
(d)
If the response is “DHS Tentative Nonconfirmation,” go to Step 7.
STEP 10: FINAL NONCONFIRMATION
1.
Once you receive a notice that acts as a FINAL NONCONFIRMATION, which
includes “SSA Final Nonconfirmation,” “DHS Final Nonconfirmation,” “DHS
No-Show,” or employee does not contest a tentative nonconfirmation:
(a)
2.
TERMINATE THE EMPLOYMENT OF THE INDIVIDUAL who was
the subject of the final nonconfirmation. Complete a personnel status
form identifying that the employee was unable to complete a valid I-9 and
E-Verify process.
If the company chooses not to terminate the employment, it must report in EVerify during the case resolution, “Employee Not Terminated” and it will be
presumed that the company is knowingly employing an unauthorized worker if
the individual turns out to be unauthorized.
(a)
Close the Case on the Case Details Screen by selecting “Close Case” and
selecting the appropriate selection based on the employee’s verification
results.
(b)
Print the Case Details Page and attach to the Form I-9.
(c)
THIS IS THE END OF THE PROCESS.
WHERE TO GO FOR MORE INFORMATION?
1.
This document is a summary for informational purposes and should not be relied
upon as legal advice. Refer to the E-Verify User Manual, the Memorandum of
Understanding, and updates released by the USCIS at: www.uscis.gov for more
information.
2.
The USCIS is making changes to the E-Verify system and the User Manual on a
regular basis in response to feedback it receives from government studies and
from registered users. Keep apprised of changes and complete refresher training
when system changes are announced.
3.
Please note that there is a potential issue with copying only the documents used
for the photo tool (the permanent resident card, Form I-766, U.S. Passport, or U.S.
Passport Card) and not copying any other supporting documents used to complete
the I-9. Federal law prohibits employers from selectively copying documents
employees present to complete the form I-9. Federal law and regulations state
that the employer is not required to keep copies, but to selectively copy only the
documents of individuals of certain national origins or citizenship status could
violate the nondiscrimination provisions of the Immigration and Naturalization
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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602.322-4046
[email protected]
Act. We are awaiting an opinion from the Office of Special Counsel for
Immigration Related Unfair Employment Practices regarding photocopies. After
providing conflicting advice during the last several years, USCIS has not taken
the position that employers using E-Verify are required to keep copies of the
documents used for the photo tool but are not required to keep copies of other
documents. According to USCIS, this does not violate the I-9 regulations because
it is required by the E-Verify program and does not have a discriminatory intent.
THIS DOCUMENT IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE LAW.
IT IS NOT TO BE REGARDED AS LEGAL ADVICE.
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121
122
123
124
125
126
127
128
129
130
131
The Immigration Reform and
Control Act (lRCA) Prohibits
Employment Discrimination
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I
KIIII\\
Under IReA, when hiring, discharging, or recruiting or referring for a fee, employers with
four or more employees may not:
•
Discriminate because of national origin against U.S. citizens, U.S. nationals. and
authorized aliens. (Employers of 15 or more employees should nOle thal the ban
on national origin discrimination against noy individual under Title VII of the
Civil Rigbts Acl of 1964 continues 10 apply.)
•
Discriminate because of citizenship status against U.S. citizens, U.S. nationals,
and the following classes of aliens with work authorization: pennanent residents,
lempol'B1)' residents (thai is, individuals wbo bave gone througb the legalizatioo
program), refugees, and asylees.
Employers can demoostrate compliance with the law by following the verincation (I-9 Form)
requirements and trealing all Dew hires the same. This includes the followiog steps:
•
Establish a poUcy or hiring only individuals who are . ulborized to work. A U.S.
citizens only" policy in hiring is illegal. An employer may require U.S. citizenship
for a particular job only if it is required by federal, state, or local law, or by
government contract.
•
Complete Ibe 1-9 Form for all new hires. This form gives employers a way to
establish that the individuals they hire are authorized to work in the United States.
•
Permit employees to prescnt any document or combination of documents
acceptable by Jaw. Employers cannot prefer one document over others for
purposes of completing the 1-9 Form. Authorized alieos do Dot carry the same
documents. For example, not aU aliens who are authorized to work are issued
"green cards." As long as the documents are allowed by law and appear to be
genuine on their face and to relate to the person, they should be accepted. Not to
do so is illegal. Acceptable documents are listed on the reverse side.
IRCA established the Office of Special Counsel for Immigration-Related Unfair Employment Practices
to enforce the LRCA. alllidiscrimination provision. DiscriminaOon charges are filed with this Office.
Charges or written inquiries should be sent 10: Civil Rights Divison. The OJIice of Special COlllfSel for
Tmmlgration-Related Unfair Employment Practices, 950 Penllsyi'WDIia Ave., N. IV.• Washington, DC
20530. For more ;IIfonnation, call/he OSC Employer Hotline at 1-8(J()..255-8155 (toll free);
1-800-362-2735 (l'DD device/or fhe hearing impaired). For questions aboul Tille VIT. please cOlllacl
the Equal Empioyme1ll Opportunity Commission 0/1-800-669-4000 {tol/free} or 202-275-7518 (fDD).
132
“Look at the Facts. Not at the Faces”
10 Steps To Take To Avoid Immigration –Related Employment Discrimination
X
Y
Z
[
\
]
^
Treat all people the same when announcing a job, taking applications, interviewing, offering a job,
_
On the I-9 form, verify that you have seen documents establishing identity and work
authorization for all your new employees-U.S. citizens and noncitizens alike-hired after November 6,
`
Remember that many work authorization documents must be renewed on or before their
a
verifying eligibility to work, hiring, and firing.
Accept the document(s) the employee presents. As long as the documents prove identity and
work authorization and are included in the list on the back of the I-9 form, they are acceptable.
Accept documents that appear to be genuine. Establishing the authenticity of a document is not
your responsibility.
Avoid “citizen only” or “permanent resident only” hiring policies. In most cases, it is illegal to
require job applicants to have a particular immigration status.
Give out the same job information over the telephone to all callers, and use the same application
form for all applicants.
Base all decisions about the firing on job performance and/or behavior, not on the appearance,
accent, name, or citizenship status of your employees.
Complete the I-9 form and keep it on file for at least 3 years from the date of employment or for 1
year after the employee leaves the job, whichever is later. You must also make the form available to
government inspectors upon request.
1986.
expiration date, and the I-9 form must be updated. This process is called Reverification. At this time,
you must accept any valid documents your employee chooses to present, whether or not they are the
same documents provided initially. (Note: You do not need to see an identity document when the I-9
form is updated.)
Be aware that U.S. citizenship, or nationality, belongs not only to persons born in the United
States but also to all individuals born to a U.S. citizen, and those born in Puerto Rico, Guam, the
Citizenship is granted to legal immigrants after they complete the naturalization process.
For more information, call the OSC Employer Hotline
1-800-255-8155
www.usdoj.gov/crt/osc
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133
E-Verify Employer DOs and DON’Ts
(Revised 03/21/11)
DO
•
Use program in a non-discriminatory manner, without regard to the national origin or citizenship status of
your employees
•
Use program for new employees after they have completed the I-9 Form
•
Promptly provide and review with the employee the notice of tentative nonconfirmation
•
Promptly provide the referral notice from the Social Security Administration (SSA) or Department of
Homeland Security (DHS) to the employee who chooses to contest a tentative nonconfirmation
•
Allow an employee who is contesting a tentative nonconfirmation to continue to work during that period
•
Check E-Verify daily for updates in connection with the tentative nonconfirmation
•
Contact E-Verify if you believe an employee has received a final nonconfirmation in error
•
Display the required E-Verify participation poster (available from E-Verify) and the required
antidiscrimination poster issued by the Office of Special Counsel for Immigration-Related Unfair
Employment Practices (OSC)
•
Accept any Form I-9 List B document with a photo from an employee who chooses to provide a List B
document
•
Safeguard the password used to access the E-Verify program in order to ensure the privacy of employees’
personal information
•
Delay running an E-Verify query for an employee who has not yet been issued a Social Security number
until the Social Security number is issued
•
Allow an employee who has not been issued a Social Security number to work throughout the period that
the employee is waiting for his or her Social Security number to be issued
PLEASE SEE BACK FOR E-VERIFY DON’TS
For more information, call the OSC Employer Hotline 1-800-255-8155;
TDD for the hearing impaired: 1-800-237-2515 www.justice.gov/crt/about/osc
134
THE CAVANAGH LAW FIRM, P.A.
MEMORANDUM
Julie A. Pace
The Cavanagh Law Firm
(602) 322-4046
FROM
I-9 Reverification and Receipt of Application and Rehires
RE
This memo addresses the use of documents containing expiration dates when completing
an I-9 Employment Eligibility Verification Form. The memo discusses when an employer must
reverify the employment eligibility and update the Form I-9 for existing employees. In addition,
this memo addresses the circumstances under which a receipt for an application for a document
verifying employment eligibility may be used when completing the I-9 Form.
I.
DUTY TO REVERIFY EMPLOYMENT ELIGIBILITY.
If an employee checks the fourth box in Section 1, “Alien authorized to work until
______,” the Company has a duty to reverify the employee’s work authorization on or before the
date the employee writes in section 1 after “Alien authorized to work until _____.” An employer
should create a file and a tickler system to remind them about pending expiration dates for
employee’s whose work authorization must be reverified and I-9 form updated. The employer
should start providing the employee with notice at least four months in advance of the expiration
date to allow the employee time to renew their documents prior to the expiration date. Send at
least one reminder.
Approximately one week before the expiration of the individual’s work authorization, set
an appointment with the employee on or before the date on which the work authorization
document expires to present unexpired work authorization documents and update the Form I-9.
The employee is permitted to select from the list of acceptable documents on the I-9 which
document to present from List A or List C to update the I-9. The reverification and update can
be done using Section 3 of the Form I-9.
If an employer allows an alien who is only temporarily authorized to work in the United
States to keep working past the expiration date of their work authorization without updating the
Form I-9 and verifying continued work authorization, the employer may be liable for knowingly
hiring an unauthorized worker.
Please note that employees do not always check the correct box in Section 1, so if the
employee provides a temporary work authorization document the employer has a duty to reverify
employment eligibility. The employer should look at both the attestation box and the type of
document and expiration date on it to determine whether there is a duty to reverify an
individual’s work authorization and update the Form I-9 when the document expires.
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602.322.4046
[email protected]
II.
DOCUMENTS WITH EXPIRATION DATES.
Several documents acceptable for use on the I-9 contain expiration dates, including
passports, driver’s licenses, permanent resident cards (I-551), and employment authorization
documents (EADs), such as the Form I-766. Upon expiration of some of these documents, an
employer has a duty to reverify an individual’s work authorization and update the Form I-9.
With other documents, there is no duty to reverify work authorization when they expire.
Whether or not the document must be reverified depends largely on whether the employee’s
eligibility to work in the United States expires when the document expires. The duty to reverify
documents is triggered by the expiration of an employee’s authorization to work in the U.S., as
identified on Section 1 of the I-9 by the employee checking “Alien authorized to work until
_______.”
It is slightly misleading to speak of “reverifying documents,” because it is technically an
employee’s eligibility for employment in the U.S. that the employer is verifying, not the original
document establishing the employee’s work eligibility. An employer may not require an
employee to present a renewed or unexpired version of the document that has expired. Upon
expiration of a document, the employee may present any document on List A or List C of the I-9
Form that verifies employment eligibility. The expiration of a document that demonstrates
temporary authorization to work in the U.S. merely triggers the duty to reverify employment
eligibility. With that caveat, this memo will continue to speak in terms of reverifying
documents, rather than reverifying employment eligibility.
A.
United States Passports
The regulations regarding employment eligibility verification allow an employer to
accept an unexpired U.S. passport or passport card as proof of eligibility for employment in the
United States. Citizens and nationals of the United States are automatically eligible for
employment in the United States. The expiration of a United States passport will not affect an
employee’s eligibility for employment in the United States, because the employee is a citizen.
Therefore, when a United States passport that was used on an I-9 expires, it does not need to be
reverified and the I-9 does not need to be updated.
B.
List B Documents.
Documents on List B of the I-9 Form are used to establish an employee’s identity. They
are not used to verify employment eligibility. Documents on List B must be unexpired when
the I-9 is completed, but do not have to be reverified after they expire. Because eligibility to
work in the United States may change, documents used to establish work eligibility may have to
be reverified. However, an individual’s identity should not change, so logically documents used
solely to establish identity do not have to be reverified.
C.
Form I-551 “Green Card”.
An employer is not required to reverify employment eligibility when the Permanent
Resident Card or Alien Registration Receipt Card, Form I-551, expires. Forms I-551 are issued
only to lawful permanent residents of the United States. The expiration of the Form I-551 does
not affect a lawful permanent resident’s authorization to work in the United States. However,
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©2013 Julie A. Pace
602.322.4046
[email protected]
expired Forms I-551 must be renewed so that cardholders will have evidence of their status when
applying for new employment, traveling outside the United States, and certain other benefits.
Note, however, that temporary evidence of permanent resident status, such as a temporary I-551
stamp on a foreign passport, must be reverified upon expiration.
D.
Documents That Trigger the Employer’s Duty to Reverify Employment
Eligibility When the Document Expires.
While all documents presented for I-9 purposes must be unexpired at the time the
employee and employer complete the Form I-9, only some documents trigger the employer’s
duty to reverify the employee’s employment eligibility upon expiration.
Documents triggering the requirement to reverify employment eligibility upon their
expiration include:

A foreign passport with an I-551 stamp;

An employment authorization document, such as Form I-766 or Form I-94.

Any other employment authorization document issued by the Department of
Homeland Security not listed under List A.
The U.S. Citizenship and Immigration Services Division of the Department of Homeland
Security (USCIS) recommends employers remind employees of the date of expiration of
documents on the I-9 at least 90 days in advance of the expiration, because it may take CIS 90
days to process an application for an employment authorization card. The employer must
reverify on the I-9 Form that the individual is authorized to work in the U.S. not later than the
date the work authorization expires. Receipt for an application for a document to replace a
document that has expired does not verify authorization to work in the United States.
III.
RECEIPT FOR APPLICATION FOR A DOCUMENT VERIFYING
EMPLOYMENT ELIGIBILITY.
The receipt for application for a replacement document is acceptable as proof of
eligibility to work in the U.S. only if the original document was lost, stolen or damaged. The
receipt should indicate that it is for a replacement card, not a newly issued card. The employee
must present the replacement document to the employer within 90 days of being hired or before
the employee’s current authorization to work in the United States expires (for work verification
documents that have to be reverified when they expire). Receipt for an application to replace an
expired document proving work eligibility is not acceptable. Thus, a receipt acknowledging
application for an Employment Authorization Document (Form I-766) is not acceptable to
reverify eligibility for employment after the Employment Authorization Document expires. The
new employment authorization document must be obtained prior to the expiration of the current
document. The regulations make clear that when reverifying eligibility for employment in the
United States, the replacement document must be presented by the date the employment
authorization expires.
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602.322.4046
[email protected]
IV.
REHIRES
If you rehire an employee within three years of his or her previous hire date, you may
rely on the information on his or her previous Form I-9.
If you rehire an employee for whom you never created an E-Verify case and the
employee’s previous Form I-9 lists an expired identity document (List B), then you must
complete a new form I-9 and create a case for the employee in E-Verify.
If you rehire an employee for whom you created an E-Verify case and the employee’s
previous Form I-9 lists an expired identity document (List B), then you may either:
:1498476.2
1.
Complete Section 3 of the employee’s previous Form I-9 and not create a
new case for the employee in E-Verify; or
2.
Complete a new Form I-9 for the employee and create a new case for the
employee in E-Verify.
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©2013 Julie A. Pace
602.322.4046
[email protected]
THE CAVANAGH LAW FIRM, P.A.
MEMORANDUM
FROM
RE
I.
Julie A. Pace
The Cavanagh Law Firm
(602) 322-4046
Creation and Maintenance of Personnel Files Including Confidential Information
PERSONNEL FILES.
Employees are not entitled to access or to review their own personnel files in Arizona.
The files are considered the property of the employer and access is limited according to the
employer’s own policies. As a result, employers must ensure that any policy regarding personnel
files is consistently enforced.
The files should be kept in a confidential and secure manner, such as a locked filing
cabinet with limited access to named individuals. If the files are left unlocked and unsecured, the
employer risks an invasion of privacy claim should an unauthorized individual gain access to
personal information of the employee. Thus, security is a major factor to consider when
determining how to create and maintain employees’ personnel files. Recommendations as to
security will be discussed at the conclusion of this memorandum.
It is imperative that the personnel file not contain any inappropriate references to
employees’ protected classification, such as: age, race, sex, religion, color, national origin, or
disability. If a manager has included such references or used inappropriate terms in any
personnel documents, such references should be removed from the documents and the manager
counseled or disciplined for the use of the terms.
II.
DOCUMENTS TO INCLUDE IN EMPLOYEE’S GENERAL PERSONNEL FILE.
At a minimum, the general personnel file of an employee should include all of the
documents that the employee submitted as part of the process of being hired. The following are
examples of these documents.
1.
Application forms
2.
Resumes
3.
Letters of reference and similar documents
4.
Job description for the employee’s position
5.
Offer of employment or employment contract
In addition, documents that reflect the initial hiring process of the employee should be
included in the personnel file. The following are examples of these documents.
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602.322.4046
[email protected]
1.
Tax withholding and benefit election forms
2.
Acknowledgement of receipt of Company documents (handbooks, sexual
harassment policy, etc.)
3.
Documents reflecting the orientation and training the employee received
4.
Any employment agreements between the employee and Company (i.e.
non-compete agreements)
5.
Record of all Company property provided to employee
The general personnel file should also contain documents that trace and reflect the
employee’s job assignments with the Company, compensation history and any changes to benefit
elections. The following are examples of these documents:
1.
Personnel action records reflecting transfers or promotions
2.
Personnel action records reflecting pay raises
3.
Changes in benefit election forms
The last items to be included in the general personnel file relate to employee
performance. These documents will generally be generated on a regular basis or in response to a
problem with the employee. The following are examples of these documents.
III.
1.
Periodic employee performance evaluations
2.
Employee counseling and disciplinary notices
3.
Examples of work product or other documents that support the basis for
counseling or disciplinary notices
4.
All performance appraisals, including any given at end of probationary
period, and all later periodic evaluations
DOCUMENTS TO EXCLUDE FROM EMPLOYEE’S GENERAL PERSONNEL
FILE.
The following categories of information should not be maintained in the employee’s
general personnel file for the reasons discussed under each specific heading.
A.
I-9 Forms.
These forms should not be maintained in the employee’s personnel file. The forms
should be kept in a separate file or notebook that is exclusively maintained for I-9 Forms. As a
general recommendation, an employer should not make copies of the supporting documentation
provided by the employee when filling out the I-9. This information is not required by the INS
and could be used adversely by the INS should they conduct an investigation of the Company.
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©2013 Julie A. Pace
602.322.4046
[email protected]
ALWAYS KEEP CURRENT EMPLOYEES’ I-9 FORMS.
For former employees, I-9 forms must be kept for three (3) years after the date of hire or
one (1) year after the date of termination, whichever period is longer. An easy way to make sure
the Company is in compliance with the retention of I-9 forms is to abide by the following rule of
thumb:
1. Enter date employee started work: ___________________
Add 3 years to Line 1.
A. ___________
Add 1 year to Line 2
B. ____________
2. Termination date:_____________
Which date is later: A or B? Enter later date here.
B.
C. _____________
Store Form I-9 until
this date.
Discrimination and Harassment Investigations.
Any documentation gathered during an investigation into a discrimination or harassment
complaint should be maintained in a file separate from employees’ personnel files. If the
materials are in the general personnel file, the employee may later argue that a supervisor who
checked in the personnel file became aware of the employee’s charge of discrimination and,
based on that knowledge of the protected activity, denied a future promotion or pay. The
documentation should be kept together in one separate confidential and secure area. The
following are examples of these documents.
1.
Interviews with employees
2.
Documentation gathered from employees’ personnel files during
investigation
3.
Outcome of the investigation
4.
Any evidence gathered during the investigation
5.
Any charges filed by the employee with federal or state civil rights
agencies
6.
Any legal action filed by the employee
If the investigation results in disciplinary action toward any employee, the document
related to the discipline may be included in an employee’s general personnel file.
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602.322.4046
[email protected]
C.
Medical Information.
Special guidelines apply to medical information that has been gathered about an
employee. The Americans with Disabilities Act (“ADA”) imposes on employers very strict
regulations concerning the confidentiality of medical information received through post-offer
medical examinations and inquiries. Similarly, the Family Medical Leave Act (“FMLA”) also
adopts regulations for any medical information gathered under the Act.
An employer must keep medical records separate from non-medical records, on a
separate form and in a separate confidential area. A limited number of persons should have
access to the area, preferably just one. Included under the umbrella of medical information is
any of the following type of documents.
1.
FMLA requests, employer responses, health care provider certifications
and any other documents containing medical information
2.
Post-offer medical examinations or inquiries
3.
Information on ADA disability and reasonable accommodation
4.
Workers’ Compensation information that relates to medical diagnosis or
treatment
5.
Health insurance information containing medical information
6.
Drug test results
7.
Doctor’s notes
8.
Return to work forms if it contains medical diagnosis or treatment
9.
Any other medical information gathered from employees (i.e. emergency
medical treatment forms listing medical conditions)
In order to facilitate gathering information regarding charges of disparate treatment or
impact, a separate file should be maintained for ADA information, FMLA information, health
insurance information, and other medical related information. If the files are maintained in this
manner, it will be easier to research how similarly situated employees have been treated since all
the files are kept together.
Disclosure of this type of information is allowed in the following situations; other types
of disclosure risk legal liability.
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1.
Supervisors and managers may be told of necessary restrictions regarding
an employee’s duties and about necessary accommodations;
2.
First Aid and safety workers may be told about an employee’s disability
that may require emergency treatment or about specific procedures that are
needed if the workplace needs to be evacuated; or
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©2013 Julie A. Pace
602.322.4046
[email protected]
3.
D.
Government officials investigating compliance with federal law or at
hearings or other proceedings may learn medical information.
Manager or Supervisor’s File.
An individual supervisor may maintain a file related to an employee’s job performance
and conduct for matters that are not maintained in the official personnel file. These documents
will usually reflect the day-to-day interactions between the employee and others in the
workplace, conduct the employee has been counseled or disciplined for, and the Manager’s
observations. These documents may then be used to support employee counseling, evaluation,
discipline or termination.
These documents can be transferred to the employee’s personnel file when appropriate,
either at termination or when a problem arises. Or copies may be maintained in the Manager’s
file and the originals sent to the personnel file upon creation of the document. These files are the
Company’s property and not subject to inspection by the employee. The Manager should
maintain files on all employees supervised in order to avoid a charge of disparate treatment or
retaliation.
IV.
SECURITY MEASURES FOR EMPLOYEE FILES.
As discussed above, there are certain types of employee information that must be kept
confidential and maintained separately from other employee files. It is recommended that each
set of the confidential files discussed above be kept in individual locked cabinets. Access to
these cabinets should be limited to a named individual, for instance, the Human Resources
Manager, or specified individuals, i.e., human resources personnel.
As an alternative, the information may be stored in a secure location where access is
limited to only those employees with authorization to access the files. For instance, if all of the
files are kept in a locked room with access restricted to the Human Resources Manager, the
individual employee’s files could be kept in separate files but maintained in the same location
(i.e. file cabinet). This would fulfill the intent of the law that confidential information not be
disclosed to unauthorized persons.
However, it is still beneficial for the employer to maintain files of like character, such as
discrimination investigations, together instead of filing them according to the employee.
Maintaining separate files for each confidential topic facilitates gathering information regarding
charges of disparate treatment or impact.
Additionally, care should be taken to ensure that any documentation that contains
confidential information (discussed above) or personal information (such as social security
number or home address) of the employee not be thrown away, but instead should be shredded
for security reasons. This should prevent invasion of privacy claims based on the negligent
disposal of confidential or personal information and should prevent the selling of such
information.
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602.322.4046
[email protected]
V.
MAINTAINING PERSONNEL FILES.
Care should also be taken to periodically review the employee’s personnel file, for
instance, when the employee’s performance evaluation is being conducted. The review should
encompass ensuring that all documents in the file are accurate, up-to-date, and complete.
Additionally, if the Company’s policies call for removing certain documents, such as disciplinary
records, after a specified time frame that can be accomplished during the review of the file.
Issues to consider during the review include the following.
1.
Does the file reflect all of the employee’s raises, promotions and
commendations?
2.
Does the file contain every written evaluation of the employee?
3.
Does the file show every warning or other disciplinary action against the
employee?
4.
Had the file been purged of documents in accordance with the Company’s
established policy?
5.
Is the most current acknowledgment of any handbook or policy in the file?
6.
Does the file contain current versions of every contract or agreement with
the employee?
Regulations issued by the Equal Employment Opportunity Commission require that
personnel files be maintained for one (1) year after the termination of the employee. But if an
employee has filed a charge of discrimination, the personnel file must be maintained until the
end of any resulting litigation. Payroll records and FMLA information must be maintained for a
minimum of three (3) years. Information relating to Social Security mismatch requests should be
maintained separately for approximately seven (7) years.
The most conservative approach is to keep all employee personnel files for seven years,
which would be the outside limit of most statute of limitations for any claims that could be
brought by an employee. At the point where personnel files are going to storage, after the
employee’s termination, it is then allowable to collapse all of the individual files into one
condensed file. However, it would be best if the consolidation still showed the separation of
materials between the confidential files and the general files in the event the employee ever
brings a claim against the Company.
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©2013 Julie A. Pace
602.322.4046
[email protected]
I MMIGRATION P OLICY C ENTER
…providing factual information about immigration and immigrants in America
ERROR! Electronic Employment Verification Systems:
What Will Happen When Citizens Have to Ask the Government For
Permission to Work?
Many on Capitol Hill are eyeing favorably bills that create a massive electronic employment
database. While proponents of the Shuler-Tancredo "SAVE Act" (HR 4088) and the Johnson
"New Employee Verification Act of 2008" (HR 5515) talk tough about cracking down on illegal
immigrants, the truth is their bills’ nationwide mandatory electronic employment verification
system require all American workers, foreign- and native-born alike, to seek the government’s
permission to work. If the government database isn’t accurate, Americans will be denied
employment and paychecks, at least temporarily, while they attempt to resolve the problem with
the government agencies.
The proposed bills build upon the E-Verify program, a small pilot program that taps Social
Security Administration (SSA) and Department of Homeland Security (DHS) databases to make
determinations about employment authorization. Here is what we know about the databases and
what we can expect if these bills are passed:
Errors in the database that E-Verify checks to determine work authorization
status impact millions.
4.1%: error rate in the SSA database
17.8 million: number of discrepancies in the SSA database
12.7 million: number of database discrepancies pertaining to native-born U.S. citizens
1 in 25: number of new hires that would receive a tentative nonconfirmation based on error
rates
55 million: approximate number of new hires per year in the U.S.
11,000: number of workers per day who would be flagged as ineligible for employment if EVerify were mandatory for all employers
25: workers per work day per congressional district who would be flagged as ineligible for
employment if the Shuler or Johnson bill passed, making E-Verify mandatory for all employers
A DIVISION OF THE
TH
918 F STREET, NW, 6
AMERICAN IMMIGRATION LAW FOUNDATION
FLOOR x WASHINGTON, DC 20004 x TEL: (202) 742-5600 x FAX: (202) 742-5619
145
www.immigrationpolicy.org
If the Shuler or Johnson bills are passed, E-Verify would have to be expanded
exponentially in a short time period.
55,000: the number of employers currently enrolled in E-Verify
7 million: the approximate number of employers in the U.S.
13,000%: approximate increase from number of current users
6,500: approximate number of employers per day (including weekends and holidays) that
would have to enroll in E-Verify to meet the Johnson bill requirement of enrollment of all
employers within 3 years. 4,800 per day to meet the Shuler bill 4-year requirements.
50-60 million: number of queries per year E-Verify would have to respond to if the Johnson
or Shuler bill were enacted
3.6 million: number of queries E-Verify received in 2007
Impact on the Social Security Administration if E-Verify were made
mandatory for all employers
751,676: number of cases waiting for decisions on disability claims today
499: average number of days a person waits for a disability claim decision today
50%: percentage of calls to SSA field offices that receive a busy signal today
78 million: number of baby boomers soon to be eligible for Social Security retirement benefits
1 million: increase in the number of claims submitted to SSA per year for the next ten years
due to the retirement of baby boomers
3.6 million: number of extra visits or calls to SSA field offices if the “SAVE Act” or the
“New Employee Verification Act” were to make E-Verify mandatory
2,000-3,000: number of work years SSA would need to address increases in demand
146
Employers in the voluntary pilot program misuse E-Verify. A 2007 evaluation of
E-Verify commissioned by DHS found that:
47%: employers who improperly put workers through E-Verify before the employees’ first day
of work.
22%: employers who restricted work assignments based on tentative nonconfirmations
16%: employers who delayed job training based on tentative non-confirmations
April 2008
For more information contact:
Michele Waslin
[email protected]
202-742-5600
Sources:
Harper, Jim. “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”
Washington, DC: CATO Institute, March 5, 2008. http://www.cato.org/pubs/pas/pa-612.pdf
Office of the Inspector General, Social Security Administration, “Accuracy of the Social Security Administration’s
Numident File,” Congressional Response Report A-08-06-26100, December 2006,
http://www.socialsecurity.gov/oig/ADOBEPDF/audittxt/A-08-06-26100.htm
Westat, “Interim Findings of the Web-Based Basic Pilot Evaluation,” Report submitted to U.S.
Department of Homeland Security, Washington, DC, December 2006, p. III-15,
http://www.uscis.gov/files/nativedocuments/WestatInterimReport.pdf
O'Carroll, Jr., Patrick. Reducing the Disability Backlog at the Social Security Administration. Testimony before the
U.S. House Appropriations Committee , subcommittee on labor, health, and human services, and education and
related agencies February 28, 2008.
http://www.ssa.gov/oig/communications/testimony_speeches/02282008testimony.htm
Warsinskey, Richard. Testimony before the U.S. House Appropriations Committee , Subcommittee on Labor,
Health, and Human Services, and Education and Related Agencies (National Council of Social Security
Management Associations, Inc., Feb 8, 2008), http://socsecperspectives.blogspot.com/2008/02/social-securityadvocacy-group-written.html.
147
THE CAVANAGH LAW FIRM, P.A.
MEMORANDUM
Julie A. Pace
Heidi Nunn-Gilman
FROM
Responding to the Social Security Administration No-Match Letter
RE
Each year, the Social Security Administration (SSA) sends out millions of
“Employer Correction Request” letters, also known as a mismatch or no-match letter,
informing employers that the name and social security number that the employer reported for
an employee do not match the SSA database. This memo addresses the internal policies and
procedures a company could use when the company receives a no-match letter from the
SSA. This is one option that a company could choose to implement. There are no safe
harbor or procedures guaranteed to protect companies against liability.
I.
II.
SUMMARY OF THE PROCEDURE.
1.
Check the company’s records to see if error was by the company. If yes, file
a Form W-2C to correct the SSA records. If no, proceed with the remaining
steps.
2.
Provide employee with the attached letter and with a W-9 and W-4 and return
envelope. Require the information to be returned by next pay day.
3.
Keep the returned forms in personnel files. Keep an extra copy in tickler file
and solicit an additional W-9 and W-4 from each employee subject to the nomatch letter between Halloween and Thanksgiving, so that employees subject
to a no-match letter complete two sets of forms in the same calendar year.
PURPOSE OF THE SSA NO-MATCH LETTER.
A.
The Letter is Intended to Assist the SSA to Properly Allocate Earnings.
The SSA sends the no-match letter to employers when the information an employer
reports on the Form W-2 does not match the information in the SSA’s database.
Discrepancies can result from clerical or transcription errors, name changes that are not
reported, an individual that has multiple surnames and uses a different surname for
employment than appears in their SSA file, or because the employee is using a Social
Security number that does not belong to the employee. Because the information does not
match the SSA’s records, the SSA is unable to credit the earnings to an individual SSA
earnings file, so it is placed in the “Earnings Suspense File” until the records can be matched
and the money properly allocated. The Earnings Suspense File currently contains more than
225 million mismatched earnings records and is growing at a rate of 8 million to 11 million
records per year. The SSA no-match letters are the SSA’s attempt to obtain corrected
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Julie A. Pace
602.322.4046
[email protected]
information in order to properly allocate funds from the Earnings Suspense File to individual
SSA accounts.
B.
The Letter May Not Be the Basis for Adverse Action Against the
Employee.
Because a no-match may be caused by so may legitimate reasons that do not relate to
an individuals’ work authorization or immigration status, a no-match letter does not
necessarily mean that an individual is not authorized to work in the United States. On the
face of the no-match letter, the SSA reminds employers:
This letter does not imply that you or your employee intentionally provided
incorrect information about the employee’s name or SSN. It is not a basis, in
and of itself, for you to take any adverse action against the employee, such as
laying off, suspending, firing, or discriminating against the individual. Any
employer that uses the information in this letter to justify taking adverse
action against an employee may violate state or Federal law and be subject to
legal consequences. Moreover, this letter makes no statement about your
employee’s immigration status.
Therefore, employers should not take adverse action based solely on the receipt of the nomatch letter. An employer that terminates an employee based on receiving an SSA no-match
letter may be at risk for discrimination or wrongful discharge lawsuits.
III.
RESPONDING WHEN THE COMPANY RECEIVES A NO-MATCH
LETTER.
A.
Importance of Responding When Company Receives No-Match Letters.
Although the no-match letter should not be the basis for adverse action and it is not
an immigration enforcement tool and makes no statement about an employee’s immigration
status, Immigration and Customs Enforcement (ICE) view the SSA no-match letter as some
indication that an individual may not have status. Therefore, an employer should not merely
ignore the SSA no-match letter. It should take steps to demonstrate good-faith efforts to
investigate and verify the accuracy of the employee’s social security number. This
procedure is one of the steps that a company could choose to implement.
The Department of Homeland Security (DHS) proposed regulations that would
require employers to follow a certain procedure after receiving a no-match letter. Employers
that failed to follow the procedures set out in the DHS regulations would be presumed to
have knowingly employed an undocumented worker if an employee who was the subject of
a no-match letter turned out to be an undocumented worker. These regulations were set to
become effective on September 14, 2007. However, the regulations were stopped by a
lawsuit in a federal court in California, so employers should not follow the DHS regulations.
However, DHS does consider the no-match letter some evidence undocumented status, so
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Julie A. Pace
602.322.4046
[email protected]
employers should take some actions in response to a no-match letter, rather than completely
ignoring the letter.
The procedures outlined in this memo have been derived from IRS regulations and
may help the company provide a good faith defense if ICE attempts to use the SSA no-match
letter as evidence that the company had knowledge regarding an employee’s immigration
status based on receipt of a no-match letter. Because of the lack of legal guidance in this
area, following the procedure outlined is not a guarantee that the company will never face
liability if the employee is not authorized to work in the United States, but it is a strategy the
Company can use.
B.
Steps to Take After Receiving a No-Match Letter.
The Company should send all no-match letters to Julie Pace or Heidi Nunn-Gilman at
The Cavanagh Law Firm. Include with the letters a list of all former employees with (1)
SSN (2) name (3) last known address, and (4) termination date. We will respond to the SSA
on behalf of the Company. The Company does not need to respond to the SSA directly. We
will provide the SSA with the last known address of former employees to allow the SSA to
follow-up directly with the employee.
1.
2.
Check the company’s records to determine whether the discrepancy is due to
a clerical or typographical error by the company when completing the
employee’s Form W-2.
a.
If the SSA no-match was due to the company’s error, file a Form W2C to correct the error with the SSA.
b.
If the SSA no-match is not due to the company’s error, proceed to step
2.
If the discrepancy was not a result of the company’s typographical error:
a.
Provide the employee the attached letter. This letter informs the
employee that the company has been informed of a possible Social
Security number mismatch and that the employee must provide his
Social Security number to the company. The letter instructs the
employee to correct the discrepancy with the SSA. The letter also
must inform the employee that he or she is subject to a $50 penalty
imposed by the IRS pursuant to 26 U.S.C. § 6723 if he fails to furnish
the Social Security number.
b.
Provide the employee with a Form W-9 on which to provide his or
her Social Security number and return to the company.
c.
Provide the employee with a Form W-4 to complete and return to
the company.
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Julie A. Pace
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[email protected]
IV.
d.
Provide a return envelope for the employee to return the W-9 and W-4
to the Company.
e.
Require that the employee return the Form W-4 and Form W-9 to the
company before the next pay day.
3.
If the company’s records were incorrect and the employee provides corrected
information, correct the company’s records and file a Form W-2C to correct
the SSA’s records. If the employee provides a completely different name or
Social Security number, the company is not required to accept a new identity
or new number, but can terminate the employee’s employment for providing
the company false information. If the Social Security number is one digit
different or if two digits are transposed and it was a legitimate mistake, the
company can correct its records.
4.
After the employee returns the W-4 and W-9, place them in the employee’s
personnel file. Keep an additional copy of the W-9 in a separate file as a
reminder file. Between November 1 and December 1 of the same calendar
year, solicit a second Form W-9 and Form W-4 from each employee that was
the subject of an SSA no-match letter. Place the second W-9 and W-4 in the
employee file. Thus, the Company should have two W-9 forms and two W-4
forms completed in the same calendar year by each employee that was subject
to a no-match letter.
CONCLUSION.
Following this procedure may assist the company in using a good faith basis defense
under IRS regulations. The IRS regulations provide a defense to employers against liability
for providing false information to the IRS. According the IRS, employers are entitled to rely
on the representation of the employees on the Form W-9 and Form W-4. Both the W-9 and
W-4 attest under penalty of perjury that the information provided, including the name and
Social Security number, are true and correct. Employers can extend that same argument to
other government agencies. There is no guarantee that the company will never face liability.
However, an employer risks discrimination and wrongful termination charges if it terminates
an employee based only on the no-match letter and it risks ICE using the no-match letter as
evidence that the employer knowingly employed an undocumented worker if the company
ignores the no-match letter and takes no action at all. This is one step that the company
could take to help demonstrate its good faith. There is no legal requirement to respond to
SSA no-match letters, so companies have to make a business decision regarding what
actions they want to take upon receiving a no-match letter.
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Julie A. Pace
602.322.4046
[email protected]
Dear Employee:
The Company has been informed by the Social Security Administration or
Department of Economic Security that your social security number on file with the Company
may be in error. Please verify the social security number on file in the Payroll Department
to ensure that your social security earnings are properly allocated by the Social Security
Administration or benefits properly provided by the Department of Economic Security.
Please let the Payroll Department know whether the social security number you have been
using at the Company is correct. An employee may be subject to a $50 penalty imposed by
the Internal Revenue Service under 26 U.S.C. § 6723 if the employee fails to furnish the
correct social security number to the employer.
Please take appropriate steps with the Social Security Administration or Department
of Economic Security to correct any previous mistakes or misallocations regarding social
security earnings. You can contact the Social Security Administration by visiting a local
Social Security Administration office, visiting its website at www.ssa.gov, or calling 1-800772-1213. It is your responsibility to correct any previous mistakes.
In addition, we need all employees to complete a W-9 and W-4 Form. The attached
W-9 Form requires that you list your social security number and sign the document verifying
that you are using the correct social security number. The W-4 Form is an employee’s
withholding allowance certificate that determines how much federal withholding taxes will
be deducted from an employee’s paycheck. These documents will be placed in your
personnel file. Please complete the attached W-9 and W-4 Form and submit it to Payroll by
your next payday. If you do not provide the enclosed forms, the Company is required to
withhold taxes from your wages as if you were single and have 0 exemptions per 26 U.S.C.
§ 3402(f)(2)(A).
Thank you for your cooperation.
152
Estimado Empleado:
La Compañía ha sido notificada por el Seguro Social que debe de haber un error con
su número de seguro social que consta en nuestros archivos. Por favor verifique el número
de seguro social registrado con el Departamento de Nómina para asegurar que sus ingresos
de seguro social sean correctamente repartidos por el Seguro Social. Por favor avise al
Departamento de Nómina si su número de seguro social que ha estado usando con la
Compañía es el correcto. De conformidad con 26 U.S.C. § 6723 un empleado puede ser
acreedor a una multa de $50 en caso de no proporcionar correctamente su número de seguro
social al empleador.
Por favor tome las medidas apropiadas con el Seguro Social para corregir cualquier
error previo o repartimientos equivocados referentes a los ingresos de seguro social. Es
responsabilidad suya corregir cualquier error previo. Usted puede contactar el Seguro Social
visitando una oficina local del Seguro Social, visitando su Website en www.ssa.gov, o
llamando 1-800-772-1213.
Asimismo, necesitamos que todo los empleados llenen una forma W-9 y W-4. La
forma W-9 anexa requiere que usted anote su número de seguro social y firme el documento
verificando que usted esta usando el número de seguro social correcto. La forma W-4 es un
certificado de las retenciones de empleado el cual determina la cantidad de impuestos de
retención federales que serán deducidos de el cheque de pago de un empleado. Estos
documentos serán colocados en su archivo en el departamento de personal. Por favor
complete las formas anexas W-9 y W-4 y entréguenlas al Departamento de Nómina antes del
siguiente día de pago. Si usted no entrega las formas, la Compañía estará obligada a retener
impuestos de su salario como si fuera usted soltero y con 0 de exenciones bajo el código 26
U.S.C. § 3402(f)(2)(A).
Muchas gracias por su cooperación.
153
UNSKILLED IMMIGRANT
IMMIGRATING LEGALLY? GOOD LUCK!
OUR NATION’S BROKEN IMMIGRATION AND NATURALIZATION SYSTEM
SORRY!
Unlike previous periods in our
history, there is virtually no process
for unskilled immigrants without family
relations in the US to apply for permanent legal residence. Only 10,000 green
cards are alloted every year and the wait
time approaches infinity. (Those who
receive H-2A or H-2B temporary visas
for seasonal work cannot transition
to a green card.)
JAYA DUTT
www.reason.org
CITIZEN
YES
Is applicant a
spouse, parent or
minor child?
NO
Is relative a US Citizen or
Lawful Permanent
Resident (LPR)?
YES
NO
Family in USA?
NO
Is applicant skilled?
YES
YES
YES
YES
CONGRATULATIONS!
You’ve found one of
the best ways to legally
immigrate into the US.
Spouses, minor children
and parents of US Citizens have no annual cap
on entry and can generally receive a green card.
Adult children and
siblings of US
citizens can apply for
a green card.
LAWFUL PERMANENT RESIDENT
After you file your
naturalization papers and
endure 6-12 months of
processing delays, you
can take a language and
civics test, pass and
become a US citizen.
Total time to
immigrate and
become citizen.
BEST CASE:
6-7 YEARS
Do you have a college
degree in a speciality
occupation?
Is applicant spouse or child of LPR?
NO
Wait time depends
on home country and
marital status.
Is child a
minor?
Single Adult Children:
6-14 year wait.
Married Adult
Children:
7-15 year wait.
Siblings of
US Citizens:
11-22 year wait.
Can you prove that you are a genius? How about a star athlete?
Or an investor with $1 million?
YES
Sorry,
You’re out
of luck.
YES
Sorry,
You’re out
of luck.
OK. Then you have a
shot, if...
NO
YES
After 5 years, green
card holder is eligible to
become a US Citizen
(3 years if a spouse).
SKILLED IMMIGRANT
Is the adult child
single?
NO
Spouses and
minor
children of LPRs
can apply.
Wait time
depends on
home country.
Wait time:
5-7 years.
With green card, can
likely become citizen
after another 6 years.
With green card,
can likely become
citizen after 6
years.
TOTAL:
12-28 YEARS
TOTAL:
11-13 YEARS
NO
...you have a job offer.
NO
YES
...Is he willing to
apply for your
temporary work visa
(H-1B)?
Sorry,
You’re out
of luck.
YES
Sorry, You
don’t qualify
to apply.
YES
Wait time
depends on
home country.
Wait time for
single adult
children of LPR:
9-14 years.
Is your employer willing to file
the paperwork with the DOL
for a labor certification? And
conduct a new job search for
your position? And pay up to
$10,000 in legal and other NO
fees?
YES
Wait time for a green card
(particularily from India and
China) is 6-10 years.
After your green card, count
on another 5-6 years for
citizenship.
TOTAL:
14-20 YEARS
TOTAL:
11-16 YEARS
But, if an
employer can’t
wait six to ten
years for you to
start work...
Sorry,
You’re out
of luck.
YES
CONGRATULATIONS!
You have found the
quickest way to get a
green card - about 12-18
months. But you would
have made it anywhere,
Mr. Beckham.
With your green card you
can become a citizen in
5-6 years.
Then you have a 50/50 chance of
getting your H-1B because these
visas are capped at 85,000 per
year, well below the total demand.
They run out on the first day they
become available. If you are lucky
enough to get it, then you can start
working in the country and your
employer can apply for your labor
certification and green card.
TOTAL:
6-7 YEARS
Developed by Reason Foundation in collaboration with the National Foundation for American Policy
154
YOUR RESPONSIBILITIES,
TO LEARN MORE ABOUT YOUR RIGHTS. CONTACT:
AClU of Southern California
1616 BeYerly Blvd.
Be polite and calm.
Never lie or give false information 10
an immigration agent or police.
Los Angeles. CA 90026
ACLU
(213) 977-5218
Do nol carry false 10.
KNOW YOUR
Carry the name and phone number of
an immigration attorney who will take
RIGHTS
C)
your calls.
L-
a•
IF YOU ARE ARRESTED,
the american civil liberti1'511nioo of southern california
U
Give the name or card of your attorney
U)
to the agents, and ask to speak to your
I
attorney.
-
:::J
U
to
If you do nol have an attorney. ask for the
list of free legal services for your area.
Do not sign anything without talking to an
attorney.
WHAT TO DO IF. ....
Do nol sign anything in a language you do
nol read.
YOU ARE STOPPED BY
IMMIGRATION AGENTS OR
POLICE WHILE ON FOOT.
It is iUegal for agents or police to pick
someone 01.11 for questioning because
of his or her ethnicity or race.
You have a right to be treated with
dignity and respect. If you are beaten.
threatened. called racist names.
or mistreated. you have a right to
complain about that treatment.
Be aware that just because you know
your rights and choose to exercise
them does not mean that the agents or
police will follow the law and respect
your rights.
_ ._-- - - -
r---------
---,
MY RIGIfTS CARD
I am gi....ing youthis card because I do not wish
I to speak toyou or nave any further contact wilh
I you. I choose to exercise my right to remain
I silent and to refu se 10 answer your questions.
If you arrest me. I will continue to exercise my
right to remain silent and to refuse to answer
your questions. I wanlto speak with a lawyer
before answering your questions.
L______
155
_ __
YOUR CAR IS PULLED OVER
BY IMMIGRATION AGENTS OR
POLICE.
IMMIGRATION AGENTS OR
POLICE COME TO YOUR HOME.
~
YOUR RIGHTS IN YOUR CAR
If immigration agents or police
signal you to stop your car. you
must pull over. Immigration
agents may ask brief questions
about your name, immigration
status. nationality. and travel
plans. You do not have to answer
any questions other than giving
your name.
YOUR RIGHTS ON FOOT
Rrst. aLways ask the agents or
police if you are free to go. If they
say yes. you have an absoLute right
to remain sHent and Leave. If you
do not want to talk to the agents or
poLice. you may hand the agent your
aHomey-s card. or the Rights Card.
and go. You have the absolute right
YOUR RIGHTS AT YOUR HOME
not to answer any questions posed
to you.
You do not have to open the door to
If the agents or police say that you
are not free to go. you should give
them your name. You do not have to
give any other information. such as
your address or immigration status.
any immigration agent or police officer
unless they have a search warrant from
a court.
If you do not want to Let an agent or
officer inside. do not open the door. Ask
the agent or officer, through the door. if
they have a search 'WIl"antfrom a court
aUowing them to search your home.
You have a right to review the warrant.
If you live in someone else's house. you
still do not have to open the door unless
the agents or police have a search
warrant from a lourt.
156
Police officers may ask for your
name. drivers license and vehlc~e
registration . You should show
these documents if you have them.
You do not have to answer any
other questions.
If an agent or officer asks to
search your car. you may refuse to
give him permission.
If an agent or officer questions
a passenger. that person should
ask if he or she has to answer. If
the agent or officer says yes. the
passenger has to give his or her
name. but does not have to give
any other information. The agent
may ask you and your passenger
to exit the car.
PARA IN FORMARSE MAS SaBRE SUS DERECHOS.
COMUNIQUESE CON:
SUS RESPONSABILIDADES,
Sea cortes y mantengase tranquilo.
AD.U of Southern CaLifornia
Nunca mienta 0 de informacion talsa
a un agente de inmigracian 0 a La
(La Uni6n Americana de Las Ubertades CiviLes
deL Sur de CaLifornia)
1616 8eveMy Blvd.
Los Angeles. CA 90026
polida.
No cargue identiflCacion falsa .
(213) in-521S
Ca rgue el nombre y el numero de
telefono de un abogado de inmigracion
que acepl ara sus llamadas.
tn
L-
SI USTED ES ARRESTADO,
o•
I
s ... de c.tilomi.
:::::J
U
C'U
No firme ningun documenlo sIn hablar
con un abogado.
QUE HACER SI ..
Nunca lirme un documento que este en
un idioma que no puede leer 0 entender.
Es Hegal que agentes de inmigraci6n
o la politia inlerroguen a una persona
r-------------,
RIGfIT~
con dignidad y r espeto. Si usted
TARJETA DE DERECIlDS I
es golpeado. a menazado.llamado
le doy esla tarjeta porque no deseo hablar
o lener m as contaClo con usled. Yo elijo a
ejercer mi derecho a mantenerme en silentio
y me niego a contestar sus preguntas. Si
m e arresta. se guin~ ejerciendo mi derecho
a manlenerme en silentio y a negarme a
conleslar sus preguntas. Yo quiero hablar
con un abogado antes de conlestando ni nada
preguntas.
Tenga en mente que simplemente
porque usled conoce sus derechos y
decide ejercerlos no significa que los
agentes 0 Ia policia seguiran Ia ley 0
respetaran sus derechos.
dot(
I
servicios legales grillultos en su area.
nombres raci slas 0 matlralado. usted
liene et derecho de quejarse de
maltralo.
DERECHOS
U UniOn AtMriuna de Lu Lib.., , _ CIviL...
(/)
51 no liene un abogado. plda una lista de
Usted tiene el derecho de ser tratado
CONOZCASUS
U
Dele CI (os Clgentes el nombre 0 Ia tarjeta
de su abogado y pida habtar con $U
abogado.
solamenl e por su etnla 0 su raza .
ACLU
CARD
I.-------------~
157
AGENTES DE INMIGRACI6N
o DE LA POLIclA LO
PARAN MIENTRAS aUE VA
CAMINANDO.
AGENTES DE INMIGRACI6N 0
DE LA POLIclA DETIENEN SU
AUTO.
AGENTES DE INMIGRACI6N 0
DE LA POLIclA VIENEN A SU
HOGAR.
SUS DERECHOS EN SU AUTO
5i Los agentes de inmigracion 0 la
polida seiiaLan que pare su auto.
usled tiene que pararse.
SUS DERECHOS CAMINANDO
En primerlugar. siempre pregunte
a los agentes 0 La policia si usted es
libre a irse. Si dicen que si. usted
tiene todo el derecho a mantenerse
en silencio e irse. Si no quiere
hablar con los agentes
0
la polida.
les puede dar La tarjeta de su
abogado 0 la tarjeta de derechos
y puede irse. Tiene el derecho
SUS DERECHOS EN SU HOGAR
absoluto de no contestar preguntas
Usted no tiene que abrir La puerta a
que se Le hagan.
ningun agente de inmigraci6n 0 aficial
de La pOlicia at menos de que tengan un
orden tk rtgistTO.
Si Los agentes 0 La policia dicen que
usted no puede irse. debe de darles
su nombre. Usted no tiene que dar
cualquiera otra informacion. como
su estado de inmigracion.
Si usted no quiere perm itir que un
agente U ofitiat de La poticia entre a
su casa , no abra La puerta. Pregunte
at agente u aficia par la puerta si
elias tienen un orden de registro
permitiendales a inspeccionar su
hogar. Usted tiene el derecho de revisar
La orden.
5i vive en La casa de otra persona. aun
no tiene que abrir La puerta aL menos
de que Los agentes 0 La poLkia tengan
un orden de insptecion deljuzgado.
158
Los agentes de inmigraci6n pueden
hacer preguntas breves sobre su
nombre. su estado de inmigraci6n.
su nacionalidad. y sus planes de
viaje. Usled no tiene que contestar
ninguna olra pregunta a parte de su
nombre.
Los oficiates de la poiicia pueden
pedir su nombre. su Licencia
de conducir y et regislro de su
vehiculo. Debe de demostrar estos
documentos si Los tiene. No tiene
que contestar cualesquiera otras
pregunlas.
5i un agente 0 un oficial pide
revisar su auto. puede negarLe su
permiso.
5i un agente u oficial intenta
hacerle preguntas a un pasajero. La
persona debe de preguntar si tiene
que contestar. 5i eL agente u oficiaL
dice que si. eL pasajero tiene que
dar su nombre pero no tiene que
dar cuaLquiera otra informacion.
El oficial puede pedir que usted y
su pasajero se bajen del auto.

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