Civil rights under immigration–is there such a thing?

The Immigration Reform and Control Act of 1986 (IRCA) introduced employer sanctions for ‘knowingly’ hiring undocumented workers. IRCA also initiated the Form I-9 employment eligibility verification process, and established the Office of Special Counsel (OSC) to administer anti-discrimination provisions. Since the advent of OSC, immigrants and “authorized” workers have had to regularly prove their work status.

Given this legal backdrop, the question for employers is whether it is still possible to discriminate against job seekers. In other words, is preferential hiring based on citizenship status legal? It is only legal if the individual is not work-authorized; if it is required by law, regulation, executive order or government contract; or if the individual requires sponsorship.

On a rainy day, a farmer’s lettuce harvest was less abundant than usual. The farmer, Harry, needed fewer farm workers than last season. He had to make a decision between keeping Hector or Jose. He decided to keep Hector because he was a legal permanent resident, and decided against Jose because he was an asylee with a temporary work permit. Did Harry commit citizenship status discrimination?

Yes, Harry committed citizenship status discrimination because the asylee is a “protected person” under the Immigration and Nationality Act (INA). A protected individual is a US citizen, US national, permanent resident, temporary resident, refugee or asylee. Harry could not fire Jose based on the fact that he was an asylee with a temporary work permit.

OSC defines national origin discrimination as treating employees differently based on country of origin and/or ancestry, accent, or appearing to be from a certain country. So if Harry (employer) had at least 6 employees under Missouri law, or 4-14 employees under federal law, he could not discriminate against an applicant based on the fact that he looked foreign.

What are some examples of national origin discrimination? Preferring people from a certain country; only hiring “native English speakers”; and not hiring someone with an accent.

CEO Jane had heard of the penalties for hiring unauthorized workers. Wanting to keep her company intact, she issued an order telling HR not to hire anyone who looked like they had crossed the border illegally. Did she commit national origin discrimination? Yes, she did. All hirees are required to be verified the same way regardless of whether they are immigrants or members of a foreign community.

Section 1 of Form I-9 needs to be completed after the employee takes the job, and by the first paid work day. Aliens who are authorized to work are refugees and asylees, who work with no expiry date. These employees can write N/A if he/she has no expiry date. Employees are not obligated to present documents confirming status.

Section 2 of Form I-9 needs to be completed within 3 business days of the first paid day. Employees must submit documents from List A or List B + C.

Some common problems often arise when filling out Section 2. Employers frequently ask non-US citizen workers to provide List A documents but do not ask the same of US citizen workers, while allowing US citizen workers to submit any document they choose. Employers also request non-US citizen workers to present documents from Lists A, B and C, which is against I-9 regulations. The Handbook for Employers and USCIS‘s I-9 website commonly go unreviewed by employers. Because of this, employers often don’t accept certain documents, such as receipts, from non-US citizen workers.

Employers do not need to update or reverify US citizens, permanent resident cards holders (I-551), and List B documents.

Work-authorized individuals are protected from discrimination, while undocumented individuals are not. A few possible outcomes exist if an employer faces discrimination charges by OSC. Charges can be dismissed if OSC cannot find substantial cause; proof that the employer engaged in discrimination; or if OSC has no jurisdiction. If OSC decides that the employer is at fault, then OSC attempts to arrange a settlement; otherwise it will prosecute. If the settlement is rejected, then OSC reserves the right to file a complaint against the employer. The employee may also file his or her own complaint against the employer.

Part of the settlement that OSC may enter into with the employer could include requiring the employer to rehire the individual(s); reimbursement of back pay; providing injunctive relief to the complainant; requiring the employee to provide training to HR personnel; requiring monitoring of these activities; and reporting back to OSC about compliance with the steps required by settlement. The settlement could also mandate civil penalties.

Civil Penalties for citizenship status discrimination, national origin discrimination and retaliation can be high. Penalties for first-time offenders range from $375-$3,200; second-time offenders: $3,200-$6,500, and third-time offenders: $4,300-$16,000. Penalties for document abuse range from $110-$1,100.

A TNC, or a tentative non-confirmation is when there is a tentative non-match between the applicant’s name and Social Security Number (SSN). If a TNC is issued, the employee should be allowed to contact the federal agency and remedy the situation. An employer has eight federal days to contact Social Security, and Social Security can continue the matter for 120 days. In the meantime, the employer cannot terminate; suspend; delay the employee’s job; persuade the employee to quit; decrease the employee’s hours; deny pay; asking for further documentation; or delay employing the applicant. But if the TNC becomes a “final non-confirmation”, then the employer is within rights to fire the employee.

E-Verify cannot be used as an applicant self-check or prescreening by the employer.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part X: Managing I-9 in Mergers and Acquisitions

This is Part X of our I-9 blog series, which explains how employers can avoid audit by ICE.

Mergers and acquisitions (M&A) refers to handling and negotiating the buying, selling, dividing and combining of different companies that allows for the parent company to grow in its original division or new area, without a subsidiary company or supplemental assistance.

The risk for Forms I-9 audits is real and high: I-9 audits by ICE have soared since 2009, with more than 6,000 audits on US employers and $76 million in fines. This is also part of the Obama Administration initiative to step up enforcement against employers hiring unauthorized workers. As a result, the Department of Justice has increased its efforts in criminal investigations.

But what does this have to do with M&A? In M&A, the Buyer should certainly take care because the Buyer often acquires all of the Seller’s responsibilities, including I-9 non-compliances, if there are any.

What should the Buyer do before the merger? There are a few steps that should be taken:

1. Evaluate the Seller’s Forms I-9

Gain a full understanding of how the Seller completed and housed Forms I-9. Also determine if the Seller maintained Forms I-9 using an electronic I-9 software solution or kept paper copies, and if the Seller was in compliance with ICE rules and regulations.

2. Perform Soft Audits of Forms I-9

If the Seller uses an electronic I-9 software solution, then the Buyer should perform a full audit report in order to lighten the cost and time of organizing a soft audit. Also utilize an immigration attorney who is experienced in I-9 compliance and can help the Buyer compute future monetary fines or penalties, if there are any. Immigration attorneys can also aid in developing post-deal tactics.

3. Access Samples of Forms I-9

Another option to a soft audit is to administer a partial audit, which looks at an archetypal sample of the Seller’s Forms I-9 found on divisions, departments, regions or category that correctly represents the Seller’s organizational structure.

4. Assign Monetary Figures to I-9 Form Errors

I-9 audit experts can assist in assigning monetary costs to any errors the Seller has made. This will help determine what costs the Buyer will incur if the deal were to transpire.

5. Understand the Seller’s Compliance Culture

If an ICE audit occurs, the efforts of the Buyer to demonstrate I-9 compliance will not go in vain. In order to understand the Seller’s compliance culture, the Buyer should gain a full comprehension of the Seller’s I-9 compliance policies, and systems of training and internal enforcement.

If there is no compliance culture or system of self- or internal audit of Forms I-9, then apply the Seller’s rules to the Buyer’s forms and perform the soft audit.

What the Buyer should do post-deal if the Seller is incapable or reluctant to allow access to Forms I-9:

1. Transition I-9 Forms

The Buyer must determine whether to require the Seller’s employees to complete new I-9 forms or to preserve existing forms. Sometimes the sheer volume of Forms I-9 can be daunting. Often a good solution is to use an electronic I-9 software solution to aid in shifting I-9 form data.

2. Adopt a Compliance Culture

Establish a company-wide policy and guarantee compliance–this is a great way to reduce I-9 audit risk and noncompliance, and to facilitate a M&A.

Next Week : Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part VII: Penalties

This is Part VII of a blog series for employers to avoid audit by ICE. After the employer receives a notice from ICE, which details whether the employer has been found in violation, then ICE will determine the employer‘s penalties.

The following are the most common notices:

Notice of Inspection Results
Notice of Suspect Documents
Notice of Discrepancies
Notice of Technical or Procedural Failures
Warning Notice
Notice of Intent to Fine
Final Order
Notice of Hearing
Determination of Recommended Fine

Find that each type of notice is hyperlinked and explained in further detail.

There are three different types of violations that an employer could be found guilty of: civil fines and criminal penalties for violation for Form I-9 laws; ‘knowing hire’ and ‘continuing to employ’ violations; and substantive and uncorrected technical violations.

Employers who have ‘knowingly hire’ or ‘continuing to employ’ violations will be forced to stop unlawful activity and may be fined. ICE will divide the number of both violations by the number of employees with misfiled Forms I-9, and obtain a violation percentage.

In the case of technical violations, ICE will do the same in order to obtain a violation percentage.

The violation percentage gives a base fine amount depending on whether this is a First Tier (first time violator), Second Tier (second time violator), or Third Tier (third time violator) case.

In our very own city, St. Louis, J&J Industrial Supply, Inc. was found at fault for employing illegal workers after an inspection by ICE‘s Homeland Security Investigations (HSI). The company pled guilty to knowingly hiring multiple illegal immigrants, and was charged with a $150,000 penalty, a year of probation, and forfeiting a company car. The monetary fine was equal to the profit J&J made during the 12-month period that illegal immigrants were on the company payroll.

J&J Industrial Supply was initially caught because a driver of the (forfeited) company car was caught speeding. The car was pulled over by the police and found that an illegal alien employee was driving. ICE was immediately called. Under Missouri Statute 577.675.1, it is “unlawful for any person to knowingly transport, move, or attempt to transport in the state of Missouri any illegal alien who is not lawfully present in the United States…for purposes of employment.” Doing so will result in prison time, a monetary fine, or both.

In another midwest town, Springfield, IL, five employees from La Fiesta Mexican Restaurant were criminally charged. Three were charged with abuse of fraudulent employment eligibility records; the other two were charged with illegally reentering the US after having been previously deported. If found guilty, the penalty for misusing false documents is up to five years in prison; the penalty for reentering the US after deportation is 20 years in prison and a $250,000 fine. Not only will the unauthorized workers be charged, but the owners can also be charged in civil and criminal indictments, and are also liable to fines.

In San Diego, California, The French Gourmet, Inc. was sentenced for charges of knowingly hiring illegal workers after a four year inspection by ICE‘s HSI. The company was ordered to forfeit $109,200 in profits made during the year in which illegal workers were employed, and ordered to pay $277,375 for its employment of illegal aliens. The company’s owner was also sentenced to five years of probation based on these ‘knowingly hiring’ violations.

Click on the different types of violations, which are hyperlinked, to find charts of employment percentages and fines.

Next Week : Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part VI: Step Three in the ICE Audit Process

We took a little break from detailing the US Immigration and Customs Enforcement (ICE) audit process for you, but now we’re back with the step three of ICE’s inspection.

Our entries on Form I-9 are guidelines that employers should follow in order to avoid audit by ICE. After an ICE officer visits the employer‘s worksite and examines Forms I-9, then the officer determines whether the employer adheres to rules and regulations or is in violation.

Step Three: Penalties

The employer may be given a monetary fine for technical violations. When determining the penalty amount, ICE considers five factors: the size of the business; good faith effort to comply with I-9 regulations; the seriousness of the violation by the employer; whether the violation(s) by the employer involved hiring unauthorized workers; and the employer‘s history of previous immigration and I-9 violations.

An employer who ‘knowingly’ hired, or continued to employ unauthorized workers, will be required to stop hiring unauthorized workers. The employer may be fined and in certain situations may be prosecuted criminally. This action by ICE may also involve criminal prosecution of the company’s officers. The employer may also face debarment by ICE, meaning that the employer can not participate in future federal contracts, or receive other government benefits.

Monetary fines for ‘knowingly’ hiring and ‘continuing to employ violations’ range from $375 to $16,000 per violation, with repeat offenders receiving higher fines. Fines for substantive violations, which includes failing to produce Form I-9, range from $110 to $1,100 per violation.

Employers who violate the law may be subject to:
• civil fines
• criminal penalties (when there is a pattern of violations)
• debarment from government contracts
• a court order requiring the payment by the employer to an individual employee discriminated against
• a court order requiring the employer to hire the individual employee discriminated against

An example of how an employer should not proceed is made by two companies in Houston. Atrium Companies and Advanced Containment Systems Inc. (ACSI) were found by ICE of knowingly hiring illegal immigrants to work in their facilities. Both companies were made to forfeit $2 million to Department of Homeland Security. However, the US government has agreed to not criminally prosecute the companies; instead, forcing the companies to rectify previous immigration violations, pay a hefty penalty and remain cooperative with the criminal investigation.

Atrium Companies and ACSI were sent multiple notices by the Social Security Administration (SSA), signifying that the companies’ employee names and Social Security numbers did not match SSA records. Both companies did not address this question of immigration, and continued to employ illegal immigrants from 2005-2009.

In 2011, both companies received separate audits by ICE. These audits showed that nearly half of both companies’ workforces consisted of illegal immigrants, and that the companies were knowingly hiring illegal immigrants. Since the audit’s began, all illegal immigrant employees were terminated.

Read the full details of the case here.

In the next section of Part VI, Section D, we will be discussing the last step in ICE’s auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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What happens when the Government asks to inspect Forms I-9?

The government asks an employer for Forms I-9 in order to verify and identify the employer employees. There are several steps in the process of an inspection on Form I-9.

First, either officials from the Department of Justice, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor will inspect an employer‘s Forms I-9. Typically a written Notice of Inspection (NOI) will be sent to the employer three days prior to the inspection, via U.S. mail. However, officials may opt out of giving the employer any notice, instead using subpoenas and warrants to acquire the employer‘s Forms I-9.

Officials commonly choose where inspections will occur. An officials might require the employer to bring Forms I-9 to an ICE Field Office. Sometimes an inspection will be conducted where the forms are stored.

The five general steps to an inspection as follows:
1. Notice of Inspection (NOI)
As described earlier, a written NOI is sent to the employer, giving him or her three days notice.
2. Obligation to make records available
At the time of inspection, all Forms I-9 and attachments must be available at the location where the inspection was requested.
3. Recruiters or referrers
A recruiter or referrer for a fee, who has designated an employer to complete the employment verification procedures, may present a photocopy of Forms I-9 and attachments instead of presenting Forms I-9 and attachments in its original form.
4. Compliance with inspection
Employers who refuse to present Forms I-9 will be in violation of law.
5. Use of subpoena authority
An officer may be forced to attain Forms I-9 and attachments by issuing a subpoena if the employer has not complied with a previous request to present Forms I-9.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part VI: Step Two in ICE Audit Process

This blog details how employers can avoid I-9 audit by ICE. After ICE issues the employer a Notice of Inspection (NOI), ICE visits the employer‘s worksite, or the employer visits ICE‘s offices, with the electronic or paper Forms I-9 and supporting documentation.

Second Step: Violations

If, during the audit, ICE finds technical or procedural violations, then the employer is given 10 business days to make corrections.

Employers should avoid hiring:
• workers who do not have current authorization to work in the U.S.
• workers who have criminal immigration violations
• workers who fail to produce documents from Lists A or Lists B and C.

Worksite enforcement is conducted by ICE, Immigration and Criminal Enforcement, and a department of the U.S. Department of Homeland Security.

Worksite Enforcement Strategy:
• ICE will arrest and remove any illegal workers who are found in the course of these worksite enforcement actions.
• ICE will use civil fines and debarment to penalize and deter illegal employment.

ICE officers look for evidence of mistreatment of workers, employer discrimination against workers and evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct. ICE offices will get indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the employer before arresting employees for violations at a worksite.

To avoid audit, employers must not:
• Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
• Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

In the next section of Part VI, Section C, we will be discussing the final step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step One in ICE Audit Process

This blog is for employers to avoid I-9 audit by ICE. ICE audits start with a letter from ICE called Notice of Inspection (NOI). Since the process of auditing is complex, the auditing process has been broken down into several steps so that it is easier to understand and follow.

First Step:

ICE‘s auditing process starts with an NOI that is sent, or mailed, to the employer. The NOI asks for a record of Forms I-9 maintained by the employer. The NOI is typically presented 3 business days before the employer must produce Forms I-9. ICE will ask the employer for documentation that support Forms I-9, either in the form of the payroll, list of current employees, Articles of Incorporation, or business licenses. ICE will then inspect the Forms I-9 for compliance with rules and regulations.

ICE officers usually choose where a Form I-9 inspection occurs. ICE may ask the employer to bring Forms I-9 to an ICE field office. Sometimes arrangements may made at the employer‘s worksite. When officials arrive to inspect the employer’s Forms I-9, the employer must present:
• Electronically stored Forms I-9 and any other requested documents
• Necessary hardware and software to validate electronic documents
• Any existing electronic summary of the information on Forms I-9

Employers who refuse or delay an inspection will be in violation of the law.

In the next section of Part VI, Section B, we will be discussing the second step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part V: When to Complete Section 3 of Form I-9

This is Part V of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; how to fill out section 1 of Form I-9; and how to fill out section 2 of Form I-9.

In Section 3, the employer re-verifies the the employee‘s information on Form I-9. When an employee’s employment authorization or documentation expires, the employer must re-verify that the employee is still authorized to work.

Employers should complete Section 3 when:
• An employee’s employment authorization or employment authorization documentation has expired
• An employee is rehired within three years of the date the previous Form I-9 was completed
• An employee changes his or her name

Employers should not re-verify U.S. Citizens; lawful permanent residents who presented a Permanent Resident Card for Section 2; List B documents; however, employers must re-verify all other employment authorization documentation.

Check the previous post to learn how to fill out Section 2 of Form I-9.

Next week : Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part IV: How to Fill Out Section 2 of Form I-9

This is Part IV of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; and how to fill out section 1 of Form I-9.

Section 2 of Form I-9 is to be filled out by the employer. The employer must fill out and sign Section 2 within three days of the employee’s first paid work day. If the job lasts less than three days, the employer must complete Section 2 before the first paid work day.

It is the employee‘s decision on what documentation to produce to prove their identity or employment authorization. He or she must make one selection from List A, or one selection from List B in combination with List C. The employer must not specify which documents are required; instead, the best practice would be for the employer to present the employee with a printed list of Lists A, B, and C, and for the employee to choose which of those documents to present.

Employees who present documents from List A do not have to present any other document. List A includes:
U.S. Passport or U.S. Passport Card
Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant
visa
Employment Authorization Document (EAD) that contains a photograph (Form I-766)
Foreign passport with Form I-94 or Form I-94A, and Arrival/Departure Report

The employer must be careful that the employee is authorized to work for the employer, especially if they are on a visa that allows the employee to work. The employer must ascertain that the employment authorization to work is not tied to a particular employer who is not the employer hiring the foreign worker. This is particularly important when employing foreign students, and employees on H visa, L visa, and other work visas.

Employees who present documents from List B also have to present a document from List C.

List B includes:
Driver’s license or Identification Card issued by a United States authorities that contains a photograph or name, date of birth, gender, height, eye color and address
Identification Card issued by federal, state or local government agencies or entities that contains a photograph or name, date of birth, gender, height, eye color and address
• School Identification Card with photograph
• Voter’s registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariners Document Card
• Native American tribal document
Driver’s license issued by a Canadian government authority

List C includes:
• U.S. Social Security account number that is unrestricted. Unrestricted Social Security account numbers are only issued to:
-U.S. citizens
-Non-citizen Nationals of the U.S.
-Lawful permanent residents
-Refugees
-Asylees
-Citizens of the Republic of Marshall Islands, the Federated States of Micronesia, or the Republic of Palau
-Canadian-born American Indians
-Mexican-born Kickapoo Indians
Certification of Birth Abroad issued by the U.S. Department of State
Certification of Report of Birth issued by the U.S. Department of State
Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal
• Native American tribal document
U.S. Citizen ID Card
ID Card for Use of Resident Citizen in the U.S.
Employment Authorization Document issued by Department of Homeland Security:
-Form I-94 issued to an asylee
-Work-authorized non-immigrant
-The Unexpired Re-entry Permit
-The Certificate of U.S. Citizenship

The employer must examine each employee‘s documents. If the employer rejects the document, then the employee is allowed to present other documents from Lists A, B and C.

To complete Section 2, the employer should:
• Record the document title, issuing authority, number(s) and expiration date from the employee’s original document(s)
• Enter the date the employee began or will begin paid work
• Provide the name, signature and title of the person completing Section 2, as well as the date he or she completed Section 2
• Record the employer’s business name and address
• Return the documentation presented back to the employee
• Return the documentation presented back to the employee
• Entering the date the employee began employment
• Entering the date the employer examined the employee’s documentation

The employer may copy the documents presented by the employee and attach it to I-9 for record keeping purposes. However, this practice must be uniform for all employees; once started, the best practice for the employer is to employ a uniform policy of retaining a copy of the employee‘s identification and other documents presented that qualifies them to work for the employer.

Check the previous post to learn how to fill out Section 1 of Form I-9.

Next week : Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part III: How to Fill Out Section 1 of Form I-9

This is Part III of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. Employees should fill out the first section of Form I-9 before the first paid workday. A translator can help the employee complete Section 1. The best practice for an employer is to have the potential employee complete Section 1 and present documents from either List A, or List B and List C.

Both the employee and employer need to work together to fill out Section 1 of Form I-9.

Employees should provide:
• Their full legal name—women should give their maiden name, including hyphenated names, as it appears on their identity documents
• Current address
• Date of birth
Social security number
• Citizenship or immigration status
• Alien or Admission number, if applicable
• Date employment authorization expires
• Signature and date
• If a translator helps the employee, then the translator has to provide his or her name, address, signature, and date the form
• The employee and translator’s signatures must be dated on the same day

Employers must confirm:
• All employee’s information in Section 1
• The employee and translator have both signed and dated Section 1
• The employee specified when their employment authorization ends
• The employee’s employment authorization is valid and current on the date of the employee signing and dating Form I-9
• And communicate to the employee, at least 90 days before employment authorization expires, that they need to present a List A or List C document to show continued employment authorization. Employees must present these documents on the date their current employment authorization expires.

Which employers need to collect Form I-9? Check the previous post for a full description.

Next week : Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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