Completing Form I-9 for Employees with Extended Work Authorization

Notice: The govDelivery message dated January 4, 2021 had an incorrect form number and subject line. Please see the corrected message below.

When completing Form I-9, employees may choose to present their unexpired Form I-766, Employment Authorization Document (EAD) with Category code of C33 that was issued on or after July 28, 2020, along with an I-797 Extension Notice issued by USCIS that shows a one-year extension of their deferred action and work authorization under Deferred Action for Childhood Arrivals (DACA). In Section 1, employees may enter the end validity date from the notice in the “Authorized to Work Until” field.

If your employee presents this document combination, you must enter the end validity date from their notice in the Expiration Date field in Section 2. Enter DACA Ext. in the Additional Information field.

You may reverify a current employee before reverification is required if they present this document combination to you. Enter the end validity date from their notice as the Expiration Date in Section 3. Enter DACA Ext. in the Additional Information field in Section 2.

On Nov. 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification.  Employers may continue using Form I-9 with a revision date of 03/08/2013N  through Jan. 21, 2017.  By Jan. 22, 2017, employers must use the revised form.

Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9. Refer here for more information.

Remember to login to our webinar on Wednesday Nov. 16^th, 3pm EST/12pm PST for training on the new I-9 form:  http://www.immigrationcompliancegroup.com/webinars2016/ and save the date for the E-Verify webinar as well on December 15, 2016.

IMPORTANT INFORMATION

As of January 1, 2015, E-Verify will begin disposing of E-Verify records that are over 10 years old. In order to retain case information, E-Verify employers may download and save the new “Historic Records Report.”  If you want a record of your cases that are more than 10 years old, you must download the new Historic Records Report before December 31, 2014.  The report will include all transaction records for cases more than 10 years old.  The report is only available until December 31, 2014.

NOTE – this Report will ONLY BE AVAILABLE from October 1, through December 31, 2014.  The Fact Sheet provides more information as to how to proceed to download applicable E-Verify records.

If you were not using E-Verify on or before December 31, 2004, you do not need to download the report. There will be no records to report.  Note that E-Verify will continue this practice on an annual basis.

Form I-9 Webinar on Demand | USCIS uscis.gov

By:  Timothy Sutton, Communications Editor

Wait Wait… Don’t Tell Me! is a comedic quiz program on NPR, testing listener’s knowledge of current events against some of the best and brightest in the news world. While figuring out what’s real news versus what’s made up, the show’s host presents a scenario to the contestant to determine if the scenario is fact or fiction. If you weren’t tuned into C-SPAN, you may have legitimately mistaken the House oversight committee’s interview, of the Secretary of the Department of Homeland Security (DHS) Janet Napolitano, as the latest episode of Wait Wait.

In this episode, members of the Congressional oversight committee rapidly fired questions at Napolitano, cutting short her responses, attempting to validate their “real news,” as something more than “made up.” The result, a trial like inquisition reminiscent of the famous scene between Tom Cruise and Jack Nicholson from A Few Good Men, with Napolitano ceremoniously remarking “you can’t handle the truth!” In reality, with grace and imperturbable resolve, Napolitano slowly roasted over the House Committee’s rotisserie.

Attacks upon the DHS Secretary by Chairman Lamar Smith (R-TX), Sensenbrenner (R-WI), Conyers (D-MI), and many more; indicated summary judgment has been rendered against the DHS for their approach to immigration enforcement, particularly in the areas of: visa overstays, boarder security, and deferred action. The business community should take note; Napolitano’s significant immigration reforms have yet to satisfy Congressional discontent. Looking forward, expect tighter regulation of business immigration under the guise of immigration overhaul.

Here are some DHS immigration reform highlights Napolitano submitted to Congress:

• Current DHS immigration reform focuses resources on repeat immigration law violators
• Numerous improvements were made to welcome business people…staying true to our history as a nation of immigrants
• Deterring Employment of Aliens not authorized to work by:

1. Eliminating high-profile raids and focusing on compliance through criminal prosecution of egregious employer violators, Form I-9 inspections, civil fines, and debarment
2. Since 2009, ICE audited more the 8,079 employers, debarred 726 companies, and imposed $87.9 million in financial sanctions

• Educated the business population through instituting:

1. E-Verify with more than 385,000 participants
2. E-Verify self-check

• Improving Legal Immigration:

1. Streamlining path for EB-5 entrepreneurs and clarifying the EB-2 classification
2. Instituted Entrepreneurs in Residence program and proposed regulatory changes in the Federal Register in April 2012 to minimize delays of family based immigration petitions
3. Reduced processing of benefit requests through Electronic Immigration System of Registration (ELIS)
4. Implemented “Study in the States” initiative to attract international students through a streamlined visa process

• Comprehensive Immigration Reform:

1. Supporting the Supreme Court’s decision on Section 2(B) of S.B. 1070

Napolitano capped off her remarks on immigration stating, “only a nationwide solution will resolve the challenges posed by the current immigration system.”

Despite the Congress clearly conveying their message to DHS, “Wait wait, don’t tell me, you think you’re doing a good job…” Napolitano’s focus on streamlining existing immigration policies is positive news for US businesses. Until the promise of streamlining comes to fruition, removing your business from the auditing radar, enrolling in E-Verify, and becoming Form I-9 compliant remain immigration best practices.

If you can handle the truth about current immigration policies, subscribe to our blog and stay informed by checking out our I-9 Employer Resource Center and join our LinkedIn Group.

Hello:

Headed into a new year, this is a good time to give thought to what as an HR professional you’d like to see implemented at your place of employment where compliance issues are concerned.

Take a minute and go through our survey.  Or, if you prefer, email us and let us know what your top 3 compliance projects or concerns are for 2012 – info@immigrationcompliance group.com

We’d like to hear from you.

We recommend that every employer read this brochure very carefully. As it clearly states, the: “OSC vigorously investigates and prosecutes such claims of discrimination.  Employers found to be engaging in discriminatory activity may be required to pay civil penalties and any appropriate back pay to injured parties.”

The case examples provided with accompanying fines mentioned in the brochure are excellent studies for HR professionals that deal with I-9s on a daily basis. We highly recommend that you print this out and add it to your M-274 Employer Handbook.  Make sure that all HR representatives, HR and hiring managers involved with the I-9 process has a copy of this brochure.

Should you have any questions, please feel free to contact our office at:  info@immigrationcompliancegroup.com, or by phone 562 612.3996.

Here is a selection of some of our more recent and popular blog posts:

I-9 Form Compliance:  What’s Hidden in your Paperwork

I-9 News:  ICE Inspection I-9 Overview

I-9 Audit Case Study:  Ketchikan Drywall Services

Important Electronic Vendor Guidance

What are Technical and Substantive Violations?

Employer Fined for Discrimination

SSA No-Match Letters:  OSC’s Position on Employer Action

I-9 Penalties:  Highest Civil Penalty Assessed Since Enactment of Anti-Discrimination Provisions

Gov. Brown Signs Bill Prohibiting E-Verify for Local Governments in CA

E-Verify Self Check Releases in 16 More States and is also in Spanish

Ketchikan Drywall Services (KDS), a drywall and framing company in Washington, was found to have committed 225 separate I-9 violations for which they were fined  $173,250 ($770/each) discovered during an ICE I-9 audit.

ICE subpoenaed employees’ I-9s and supporting documentation dating back 3+ years.  KDS initially provided approximately 454 I-9 forms with ‘some’ supporting documentation.  More than a year later, KDS provided another 81 I-9 forms, totaling 535.

ICE issued a NOI (Notice of Intent) to fine 271 I-9 form violations for a fine of $286,000.  KDS disputed the fine, the case went before OCAHO (Office of the Chief Administrative Law Hearing Officer) who rigidly found no reason at the time to reduce the fine.

With over 250 violations, there were obviously a number of issues, such as:

1)      Were employees recalled from layoff or rehired?  The company hired a lot of seasonal employees.  If you are recalling from layoff, there is no need for a new I-9 form.  If you’re rehiring, then Section 3 needs to be filled out (if rehired within 3 years), or a new I-9 form.

2)      Whether supporting documentation was sufficient when the I-9 has none of the information filled out in Section 2?  The Administrative Law Judge stated that the supporting documentation could only be reviewed if there was human error in transcribing information onto the I-9 form.

3)      Whether late production of a permanent resident card alleviates a substantive violation for no status box being checked when the Section 1 was originally filled out; and whether certain recorded information in Section 1 can alleviate a substantive violation for failing to check a status box or more than one status box?  There were a number of issues with employees who failed to check a status box for citizen, permanent resident, or authorized to work or who failed to write in any information.  The fact that the employer later presented LPR cards, was of no value – it was still considered a substantive violation.  If the citizen box was checked with permanent resident or authorized to work, it was considered a substantive violation because the checked boxes are contrary to each other.

There were a number of other violations such as:

4)     Failure to sign the form

5)      Failure to list any or all the necessary information in List A, B or C

6)      Acceptance of improper documentation

Overall, there were 271 I-9 forms with substantive violations out of 535 presented I-9s –  50% of the I-9s, $110 to $935 per violation.  They got hit with a fine at the top of the range, $935.  ICE indicated that they could be fined $286K.

In the end, the ALJ (Administrative Law Judge) found that ICE proved 225 substantive violations in the 535 I-9 forms for a 42% violation rate, which equated to a base fine of $770 per I-9, or $173,250.

This case represents a prime example of what we see in our I-9 audit practice whether you have a diverse workforce or not, clerical errors and oversights play a huge part in the process and they equate to technical and substantive errors – an exceedingly expensive outcome for something that can be averted with the development of a compliance program that works for your business, with regular audits and training.

We link to the Final Decision and Order

Check out our group on LinkedIn, I-9 Smart Solutions for Employers.

Most employers think that because they have never filed an immigration case for a foreign worker, that they do not need to worry about their I-9’s or immigration laws. This type of thinking in today’s enforcement climate, is indeed risky business.

You may be at risk… What most employers do not understand is that employment verification requirements are governed by the Immigration Reform and Control Act of 1986 (“IRCA”). The provisions of the law hold every employer in the USA responsible for verifying the identity and work authorization status of the employees that they hire. The means by which this is done is the I-9 Employment Eligibility Verification Form that every employee must fill out no later than the first day of work for pay – this includes both US citizens and non-citizens.  We link to more information here

The USCIS has announced that it has submitted an interim final rule to the Federal Register that will streamline the Employment Eligibility Verification (Form I-9) process.

The interim final rule narrows down the list of acceptable identity documents and further specifies that it will no longer accept expired documents. An expansive document list makes it much more difficult for employers to verify valid and acceptable forms and single out false documents compromising the security of the Form I-9 process. Within the changes included – the interim final rule will significantly improve the security of the employment eligibility verification process.

For more information on the revised ruling:
Read this press release from the USCIS & review the Q&A here