Part XII: Retaining and Storing I-9

This is Part XII of our I-9 blog series, which explains how employers can best avoid audit by ICE. In our last segment, we will be detailing the most affective methods of retaining and storing Forms I-9.

Retaining Form I-9

Employers must have a completed Form I-9 and Employment Eligibility Verification on file for each person on their payroll. The employer must also determine how much longer to keep the employee’s Form I-9 after the employee leaves.

To calculate how long to keep an employee’s Form I-9, enter the following:

Employers must retain Form I-9 until the date on Line C.

Employers are required to retain the page of the form on which the employer and the employee enter data. Copies of the employee’s documents should also be kept with the I-9. Employers may store the instructions and Lists of Acceptable Documents page as well. The I-9 may be stored on paper, microfilm, microfiche or electronically.

Storing Form I-9

Form I-9 requires the collection of personal information about individual employees. Employers should keep this in mind when determining how to retain and store completed Forms I-9. Employers should store completed Forms I-9 and accompanying documents in a manner that fits their business needs, and fits the requirement to make Forms I-9 available for inspection. Typically, employers store completed Forms I-9 and accompanying documents:

• on-site or at an off-site storage facility
• with personnel records or separate from personnel records
• in a single format or a combination of formats
• paper
• microfilm or microfiche
• electronically

No matter how you choose to store Forms I-9, you must be able to present them to government officials for inspection within three days of the date on which the forms were requested. Officers from the Department of Homeland Security (DHS), employees from the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice (DOJ), and employees from the Department of Labor (DOL) may ask to inspect these forms.

Storing the Original Paper Forms I-9
Form I-9 contains personal information about employees. When storing these forms, USCIS recommends that employers provide adequate safeguards to protect employee information. If an employer chooses to keep paper copies of an employee’s documents, the employer may store them with the employee’s Form I-9 or with the employees’ records.  However, USCIS recommends that employers keep Forms I-9 separate from personnel records to facilitate an inspection request.

Storing Forms I-9 on Microfilm or Microfiche
Employers may keep copies of original, signed Forms I-9 on microfilm or microfiche. Select film stock that will preserve the image and allow for access and use for the entire retention period.

Microfilm or microfiche must:
• exhibit a high degree of legibility and readability when displayed on a reader, or reproduced on paper.
• include a detailed index of all data so that any particular record can be accessed immediately.

If an officer notifies an employer of an inspection, the employer must provide the microfilm or microfiche and a reader-printer that provides safety features; is in a clean condition, properly maintained and in good working order; and is able to display and print a complete page of information. Once employers have preserved Forms I-9 on microfilm or microfiche, they may destroy the paper originals.

Storing Forms I-9 Electronically
Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Forms I-9. An electronic storage system must include:
• controls to ensure the integrity, accuracy and reliability of the electronic storage system.
• controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically stored Form I-9, including the electronic signature, if used.
• controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.
• an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used.
• a detailed index of all data so that any particular record can be accessed immediately.
• production of a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part XI: Correcting I-9

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

Correcting Mistakes

When correcting errors on Form I-9, only the employee can correct Section 1; the employer can correct Sections 2 and 3. If the employer discovers an error in Section 1, then the employer should ask the employee to make the corrections. The best way to correct the form is to cross-out any inaccurate information. After entering the correct information, initial and date the correction.

Multiple Errors

If the employer needs to correct multiple errors, then the employer may redo the section on a new Form I-9 and attach it to the old form. A new Form I-9 can be completed if major errors, such as entire sections being left blank, need to be corrected. A note should be included in the file detailing the reason the employer made changes to an existing Form I-9, or completed a new Form I-9. It is not in the employer’s best interest to conceal any changes made on the form–doing so may lead to increased liability under federal immigration law.

Make the method of correction uniform for all Form I-9 corrections. If the employer uses abbreviations, keep an index of abbreviations for use by the auditor.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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ICE Priorities for Apprehension, Detention and Removal of Aliens

On March 2, 2011, the US Department of Homeland Security (DHS) issued a memorandum to ICE employees, detailing ICE priorities for apprehension, detention and removal of aliens.

ICE’s first priority is apprehending those aliens who are a threat to national security, such as terrorists, spies, convicts and gang members. ICE has organized the types of offenders into three levels:

Level 1: aliens convicted of aggravated felonies, or two or more felonies punishable by more than one year each
Level 2: aliens convicted of misdemeanors, or three or more crimes each punishable by less than one year
Level 3: aliens convicted of crimes punishable by less than one year

ICE’s second priority is to deport any illegal entrants–those who have breached immigration checks at the border.

ICE’s third priority is to deport any aliens who have received a final order of removal but disregard it. This includes fugitive aliens, aliens who illegally return to the US after removal, and aliens who enter the US by fraud.

Undocumented immigrants who have no criminal histories and who have committed no crimes are the lowest priority for ICE, unless local law enforcement has an Arizona-style state immigration enforcement in place.

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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