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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Part II: Which Employers Collect Form I-9

This is Part II of a blog series for employers to maintain and and complete Form I-9, and to avoid audit by US Immigration and Customs Enforcement (ICE).

ICE uses Form I-9 to protect national security and to protect employees from employers; I-9 is used to prevent employers from hiring unauthorized workers and to prevent discriminatory practices against employees. It is vital that employers keep a record of I-9 for every employee hired in the US, both for citizens and non-citizens. Put simply, Form I-9 is a documentation of an employee’s eligibility to work in the US, and a worker’s proof of identity. I-9 is retained in order to show the validity and authenticity of those documents.

Which employers need to collect Form I-9? All employers must maintain I-9 for all US employees that work for pay and benefits; all employers must fill out I-9 for employees hired after Nov. 6, 1986.

Employers should file Form I-9 for employees who are on specific visas; for employees that are asylees or refugees; for students; for those on some other kind of non-immigrant visa with authorization to work; or for those who are US citizens and legal permanent residents (i.e. green card holders).

Employees who do not need Form I-9 are those that work only intermittently for their employers; or employees over whom the employer has no control in directing their work.

Who is an employer? Check the previous post for a full description.

Next week : Part III: How to fill Section 1 of Form I-9

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 2011. All rights reserved.

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