Tag Archives: USCIS

What Happens if my Employee is Found Not Authorized to Work in the US?

The early August ICE raids targeting Mississippi workplaces have resulted in at least 40 arrest warrants, and enforcement raids are predicted to continue.  What if ICE Workplace Enforcement shows up at your business, and it is discovered that your company is employing unauthorized workers?  The outcome will depend heavily on the status of your I-9 documentation.  Here are 5 scenarios…

Scenario #1)  Form I-9 was properly completed at the time of hire, and has been retained as required.   Relax.  There is no verification violation.  Unless the government is able to prove that you had knowledge of the unauthorized status of the employee, and were aware that the I-9 verification documents were fraudulent (not genuine), then you have performed your employer duties to the best of your ability.  An employer can’t be expected to possess the expertise to accurately discern illegitimate or fraudulent documents if they appear genuine.

Scenario #2)  The Form I-9 you have on file contains properly corrected errors or omissions.  As long as no improper modifications were made to the documents, the outcome should be the same as Scenario #1.  You may have employees make corrections to Part 1 by drawing a line through incorrect information, entering correct information, and then initialing and dating each correction.  The employer may correct information in Parts 2 and 3 in the same manner.  Never use heavy Sharpie ink, correction fluid, or anything that would obscure any of the original content on I-9 documentation!  As a best practice, USCIS recommends that you attach a signed and dated note to corrected I-9s explaining what happened.

Scenario #3)  You have an I-9 on file, but it was not completed within compliance deadlines.  Not the best situation, but better late than never.  While failure to comply with Form I-9 employment verification requirements is a civil violation that can subject you to fines and penalties, it is certainly worthwhile to follow through on collecting employment eligibility documentation in order to avoid any appearance of “engaging in a pattern or practice of hiring unauthorized aliens,” which is a criminal offense.  To achieve full USCIS compliance, make sure all I-9’s are completed by the employee on their first day of work, and by the company representative on or before the third day of work.

Scenario #4)  You have two sets of I-9 documentation for the same employee whose identity appeared to have changed in every way: name, SSN, date and place of birth, etc.  Interestingly enough, if the I-9 paperwork is properly completed, this situation likely does not present an employer liability.  When an employee who has been working under a false identity obtains work authorization and wants to regularize their employment records in their true identity, it is acceptable to complete a new I-9.  Write the original hire date in Section 2 and attach the new I-9 to the previously completed I-9 form with a written explanation.  Further instructions are in the M-274 Handbook for Employers.

Scenario #5)  Your I-9 documentation is missing, incomplete, or error-filled.  Your expensive attorney is probably picking out colors for a new Porsche, and hopefully will be able to convince authorities that your actions are a result of incompetence or non-criminal negligence.  Before this scenario occurs, we recommend conducting an internal I-9 Audit.  For assistance with the planning and completion of your I-9 audit, contact us at ConsultStu.  We will conduct a private internal I-9 audit that will itemize issues and corrective actions needed.

Companies seeking to receive public recognition for its best employment practices, protect its brand and be exempt from I-9 Form inspections for four (4) years, may seek to partner with ICE and enroll in the IMAGE program. Click here for more information about IMAGE and a list of partners and company members.  For more information about the Social Security Number Verification Service (SSNV), which is a free internet verification system, managed by the Social Security Administration, that employers can use to verify that your employee names and social security numbers match social security’s records, click here.

Revised I9 form now available

On November 14, the new #I9 form was released by US Citizenship and Immigration Services. #HR may use the new form immediately, although the old form will remain valid through January 21, 2017.  After that date, you must use the new form.  All employees who are responsible for completing the I-9, should be trained on the new form and the changes.

Here are some important directions and guidance about the new I9 form:

  1. The new I-9 can be completed as a fillable PDF to reduce errors, however, it is not an electronic I-9.  Employers must still print the completed I-9, obtain the appropriate signatures (which are not fillable via PDF) and retain the form for the proper retention period.  So, for employers completing the form in an office environment, this version will be helpful to reduce errors and remain readable because information is typed onto the form.  However, employers can still choose to complete any or all of the form using a pen to fill out sections after the document has been printed.
  2. Documents that are partly printed and partly handwritten are acceptable.  Employers may still use an electronic version of the I-9, provided the format is updated to the current version and the I9s are retained consistent with the USCIS rules.
  3. Employers do not re-verify current employees due to the new form. Use the new I-9 only for newly hired employees and when you are required to re-verify temporary work authorization.  All previously completed I9 forms must still be retained for the proper retention period. The form must be retained for as long as the employee works for you, plus three years after their hire date or one year after their termination date, whichever is later.
  4. To download the form from the USCIS website (uscis.gov/i-9), right click on the link to the new form—“Form I-9 (PDF, 535 KB).”

Notable changes to the form itself include the following:

  • The form contains on screen instructions for each field to help with questions.
  • When completed electronically, there are prompts to ensure information is entered correctly. For example, the form will validate that the correct number of digits are entered for an employee’s Social Security number and various expiration dates. Calendars and drop-down lists also include electronic assistance. After clicking “click to finish”, errors will be noted and need to be corrected.
  • Section 1, an employee only provides other last names used, as opposed to all other names used.
  • Below an employee’s signature line, they must complete the checkbox about whether a Preparer and/or Translator was used to complete Section 1.  If applicable, multiple names can be entered into that area.
  • There is a dedicated area for including additional information (read the instructions for when this needs to be completed).
  • If using fillable version, apartment number section must be completed using “n/a” if no apartment is applicable.
  • In Section 2, employers will find a new “Citizenship/Immigration Status” field in the first line with numbers one through four. These numbers correlate directly to the employee’s selected citizenship or immigration status entered in Section 1. If you use the fillable version of the form, the corresponding digit will pre-populate. If you use a paper version, enter the corresponding digit in this field. These fields (the top line of Section 2) help to ensure that the two pages of an employee’s Form I-9 remain together.
  • If using the fillable pdf form, the employee’s name will pre-populate onto the top of page 2 also.

The USCIS has released very helpful instructions for employers on the new I9 form, including detailed guidance on the correct abbreviations for Section 2 documents. A new Handbook for Employers (M-274) will likely be released in the future.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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