Immigration Update - Insulation Contractors Association of America
Transcripción
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 1932420.1 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]. 1932420.1 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. 1932420.1 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]. 1932420.1 Labor, Employment & Immigration Immigration Compliance Practice Our attorneys regularly assist employers regarding compliance and investigations involving U.S. immigration laws, including the following: 1932420.1 » 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. 1932420.1 » 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. 1932420.1 1932420.1 » 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 i 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 ii Julie A. Pace 602.322.4046 [email protected] 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 [email protected] 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 iv Julie A. Pace 602.322.4046 [email protected] XIII. CORPORATE CONSIDERATIONS............................................................................ 60 XIV. ACTIONS GUARANTEED TO TRIGGER LIABILITY. ......................................... 62 XV. SUMMARY OF KEY RECOMMENDATIONS ......................................................... 63 APPENDIX .................................................................................................. 66 1932420.1 v Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 vi Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 1 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 1932420.1 2 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 3 Julie A. Pace 602.322.4046 [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 1932420.1 4 Julie A. Pace 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. 1932420.1 5 Julie A. Pace 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. 1932420.1 6 Julie A. Pace 602.322.4046 [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. 1932420.1 7 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 8 Julie A. Pace 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. 1932420.1 9 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 10 Julie A. Pace 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. 1932420.1 11 Julie A. Pace 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. 1932420.1 12 Julie A. Pace 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 1932420.1 13 Julie A. Pace 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. 1932420.1 14 Julie A. Pace 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 1932420.1 15 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 16 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 17 Julie A. Pace 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 1932420.1 18 Julie A. Pace 602.322.4046 [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 1932420.1 19 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 20 Julie A. Pace 602.322.4046 [email protected] 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) 1932420.1 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. 21 Julie A. Pace 602.322.4046 [email protected] (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. 1932420.1 22 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 23 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 24 Julie A. Pace 602.322.4046 [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. 1932420.1 25 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 26 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 27 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 28 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 29 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 Applies to: 30 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 31 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 32 Julie A. Pace 602.322.4046 [email protected] 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: 1932420.1 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. 33 Julie A. Pace 602.322.4046 [email protected] 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: 1932420.1 34 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 35 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 36 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 37 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 38 Julie A. Pace 602.322.4046 [email protected] 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). 1932420.1 39 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 40 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 41 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. 1932420.1 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 42 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 43 Julie A. Pace 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. 1932420.1 44 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. 1932420.1 45 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 46 Julie A. Pace 602.322.4046 [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. 1932420.1 47 Julie A. Pace 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. 1932420.1 48 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 49 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 50 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 51 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 1932420.1 52 Julie A. Pace 602.322.4046 [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. 1932420.1 53 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 54 Julie A. Pace 602.322.4046 [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: 1932420.1 55 Julie A. Pace 602.322.4046 [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. 1932420.1 56 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 57 Julie A. Pace 602.322.4046 [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. 1932420.1 58 Julie A. Pace 602.322.4046 [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. 1932420.1 59 Julie A. Pace 602.322.4046 [email protected] 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) 1932420.1 a prohibition against maintaining a proceeding in any Arizona court, 60 Julie A. Pace 602.322.4046 [email protected] (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 1932420.1 61 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 62 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 63 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 64 Julie A. Pace 602.322.4046 [email protected] 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. 1932420.1 65 Julie A. Pace 602.322.4046 [email protected] 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 1932420.1 66 Julie A. Pace 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. 1498466_3 68 ©2013Julie A. Pace 602.322.4046 [email protected] 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. 1498466_3 69 ©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: 1498466_3 70 ©Julie A. Pace 602.322.4046 [email protected] 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. 1498466_3 71 ©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. 1663817_1 72 ©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.; 1663817_1 73 ©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. 1663817_1 74 ©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. 1663817_1 75 ©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. 1498460_1 ©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. 1498460_1 77 ©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 79 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. 1498455_3 105 ©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. 1498455_3 106 ©2013 Julie A .Pace 602.322.4046 [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. 1498455_3 107 ©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 1498455_3 108 ©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. 1498455_3 109 ©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. 1498394-5 111 ©2013 Julie A. Pace 602.322-4046 [email protected] 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. 1498394-5 112 ©2013 Julie A. Pace 602.322-4046 [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. 1498394-5 113 ©2013 Julie A. Pace 602.322-4046 [email protected] 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. 1498394-5 114 ©2013 Julie A. Pace 602.322-4046 [email protected] (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. 1498394-5 115 ©2013 Julie A. Pace 602.322-4046 [email protected] (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. 1498394-5 116 ©2013 Julie A. Pace 602.322-4046 [email protected] (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. 1498394-5 117 ©2013 Julie A. Pace 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. 1498394-5 118 ©2013 Julie A. Pace 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. 1498394-5 119 ©2013 Julie A. Pace 602.322-4046 [email protected] 120 121 122 123 124 125 126 127 128 129 130 131 The Immigration Reform and Control Act (lRCA) Prohibits Employment Discrimination , hat' 1111 Shllll) 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 :1498293-1 133 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. :1498476.2 135 ©2013 Julie A. Pace 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, :1498476.2 136 ©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. :1498476.2 137 ©2013 Julie A. Pace 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. 138 ©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. 1498448-1 139 ©2013 Julie A. Pace 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. 1498448-1 140 ©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. 1498448-1 141 ©2013 Julie A. Pace 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. 1498448-1 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 142 ©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. 1498448-1 143 ©2013 Julie A. Pace 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. 1498448-1 144 ©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 1498388-1 148 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 1498388-1 149 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. 1498388-1 150 Julie A. Pace 602.322.4046 [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. 1498388-1 151 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.