Form I-9 Employment Eligibility Verification Update

Important Update – Form I-9 Now Available

Employers: Prepare for I-9 Instructions

I-9 Employment Eligibility Verification

I-9 Forms verify the identity and employment authorization of individuals hired for employment in the US. All U.S. employers must properly complete Form I-9 for every individual they hire for employment – both citizens and noncitizens.

The Process: Employees and employers (or employer designee) must
complete the form. Employees present their employer with acceptable documents evidencing identity and employment authorization. Employers
then verify the employment eligibility/identity document(s) submitted and
record the document information on the Form I-9. Employers are required
to retain Form I-9 and make it available for inspection by authorized
government officers.

USCIS Changes to the I-9 Form & Instructions:

1. Form:

Revised the Country of Issuance field in Section (1) and the Issuing Authority field (when selecting a foreign passport) in Section (2) to add Eswatini and Macedonia, North per those countries’ recent name changes. (Note: This change is only visible when completing the fillable Form I-9 on a computer.)

2. Instructions:

• Clarified who can act as an authorized representative on behalf of an employer
• Updated USCIS website addresses
• Provided clarifications on acceptable documents for Form I-9
• Updated the process for requesting paper Forms I-9
• Updated the DHS Privacy Notice

With a 10/21/19 revision date, the new version can be used starting (1/31/20) – or the employer may continue to use the 07/17/17 N version until April 30, 2020. However, beginning May 1, 2020, employers may only use the new form.

Penalties exist for using an outdated form. Remember: you don‘t need to update forms for existing employees, just use the new form I-9 for new hires after today. If you use an electronic vendor for your I-9s – whether a stand-alone product or included in your HRIS – observe the coming days and weeks to ensure that the form has been updated and is included in your software!

• One common question is about authorized representatives for Section (2) completion (in the case of remote workers). The rule itself is no different, but the USCIS has clarified the instructions as follows:

“You may designate an authorized representative to act on your behalf to

complete Section 2. An authorized representative can be any person you

designate to complete and sign Form I-9 on your behalf. You are liable

for any violations in connection with the form or the verification process,
including any violations of the employer sanctions laws committed by the

person designated to act on your behalf.”

• The USCIS has also clarified that you don‘t need to fill in “N/A” for unused fields in Section (2).

• A helpful tool in the instructions is found on 8-11 where there are abbreviations listed for each possible document.

To Download the new Form I-9 click HERE

 For questions about I-9 revisions, visit: https://www.uscis.gov/i-9

or contact Wendy Garcia for additional clarification.

    CalWorkSafety Helps companies prepare for Cal/OSHA
compliance, training, inspections, citations or written plans.
Contact us today and speak to one of our Consultants:
Call: 949-533-3742
Or email: dondressler1@hotmail.com 

 

What To Do When ICE Visits Your Company

What are employers required to do if Immigration and Customs Enforcement (ICE) officials raid a job site or ask to inspect your company records?

For a long time ICE officials focused on deporting undocumented immigrants who were in jail or prison and avoided workplace enforcement. Under the current administration, ICE has shifted more of its focus to the workplace. Businesses here have high numbers of undocumented immigrants, which means that employers must know what to do in case of an ICE raid and how to be prepared.

• Approximately 1/4 of the nations11 million undocumented immigrants live in CA.
• They currently live and work here often in agriculture, service industries and construction.
• Some industries rely heavily on this group to remain competitive in the marketplace without them.

Although employers in all industry sectors should know what to do if ICE comes knocking, agricultural employers in particular, must prepare since ICE focuses heavily on this industry based on the volume of workers on dairy farms or agriculture.

To Ensure Compliance With Federal Law …
Employers Are Encouraged to Hire an HR Employee Experienced in

ICE Laws or Engage a Consulting Expert on Immigration Laws 

Workplace Raids Require Warrants

Employers are required by law to allow ICE to conduct a raid if a court-ordered warrant has been issued. In this case, if ICE wants to search a workplace and has a warrant, they must be allowed in the parts of the workplace covered by the warrant.

Without a warrant, there is no requirement for employers to open the workplace to ICE authorities, i.e.: arriving on a worksite on a “tip”-without a warrant-the employer may decide whether to grant access to ICE for an inspection. Employers should carefully read warrants as they detail what areas of the workplace are required accessible to ICE. Although ICE cannot search a job site without a warrant, they can ask to inspect records.

Inspection Notices Require Advance Notice

A notice to inspect employment records requires advance notice, and a physical raid requires a warrant. ICE may ask employers to inspect and verify the identity and employment eligibility documents of their employees. ICE may ask for Forms I-9, and other supporting documentation, such as a copy of the payroll, a list of current employees, Articles of Incorporation, and business licenses. The Notice of Inspection requires advance notice of the visit which gives employers time to gather the documents requested.

Sanctuary Cities

Employers should know that even if their business is located in a sanctuary city or jurisdiction, federal laws govern immigration, not state or local authorities. All employers must comply with ICE requirements and warrants.   Even though the state has declared itself a sanctuary state…the federal immigration authorities are governed by the U.S. Constitution and U.S. immigration laws and the state can’t undermine that or interfere in any way.

Seek Legal Help …

If your firm is struggling with a possible ICE raid, you should meet with an attorney or contact a consulting firm in this field. If you get an ICE notice you certainly should speak with an attorney.

CalWorkSafety 

Our Consultants are trained in the latest Immigration Regulations and can assist your company on these topics.  Call us today and eliminate your concerns: 949-533-3742.

ICE-HSI Notice Of Inspections To Reach Over 8,500 By 2018 Year End

How Is Your Written Immigration Compliance Policy Looking?

What Just Happened?
During the week of July 16, 2018, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) delivered Notice of Inspection (NOI)/audit notices throughout the U.S. And, HSI served 2,738 NOIs and made 32 arrests in one-week.

ICE’s Delivery of Notices of Inspection
ICE also announced that since January, 2018, I-9 audit notices were served to more than 5,200 businesses around the U.S. During Phase-1 of the operation – Jan. 29 to March 30, 2018 – HSI served 2,540 NOIs and made 61 arrests. At the present rate, ICE-HSI will reach more than 8,500 NOIs this year! This is over 5,000 audits more than the highest previous amount.

HSI is enforcing its commitment to increase the number of I-9 audits to create a culture of compliance among employers, says the HSI Director. Its worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly break the law, by using I-9 audits and civil fines to encourage compliance of the law.

Statistical Evidence
Failure to follow the Immigration Reform & Control Act can result in criminal and civil penalties. In FY17, businesses were ordered to pay $7.8 million in civil fines and $97.6 million in judicial forfeitures, fines and restitution with Asplundh Tree Experts assessed $95 million. This is the largest payment ever levied in an immigration case.

In FY 2018 to date, HSI opened 6,093a worksite investigations (I-9 audits) and made 675 criminal and 984 administrative worksite-related arrests, respectively. In FY 2017, HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

Preparing for ICE I-9 Audit
Will your company be targeted next? The best way to prepare for an I-9 inspection is having an experienced outsider conduct an I-9 audit. Doing so highlights numerous errors found, and corrects them so that if ICE inspects your I-9 forms, the errors are viewed as minor … unfortunately since almost every company has I-9 errors, they risk getting penalized.

Also – many if not all of your employees are U.S. citizens – which causes substantive and technical I-9 errors. Employers assume that by using E-Verify they are okay. While E-Verify is excellent in establishing who is authorized to work, you should know that it cannot locate substantive or technical errors on the I-9 forms.

If an ICE I-9 audit occurs, getting a lawyer involved as soon possible is suggested. An attorney can help the company negotiate a few days’ extension in responding to the subpoena. They can often get the list of requested documents reduced, as well as helping you prepare to respond in a methodical and logical way.

Being prepared for a NOI/subpoena requires a company to have proper procedures in place ‘upon hiring’. The best way to have these procedures in place is to prepare a written Immigration Compliance Policy. This policy ensures that the employees responsible for completing I-9 records on behalf of the company are properly trained to do so. For the novice, it’s hard to tell the difference between a green card and a work authorization document issued to a recipient of DACA or TPS, since one represents permanent work authorization that should never be re-verified, and the other requires the employer to re-verify the I-9 form upon the document’s expiration.

Tips To Remain I-9 Compliant:

• Be prepared to handle an ICE worksite enforcement action and understand its dynamics;
• Conduct regular internal I-9 audits and training and be able to spot issues and fraudulent documents. Contact our office for assistance in addressing I-9 issues, audits, and developing training programs;
• Review company immigration corporate compliance programs using Sarbanes-Oxley considerations at the worksite, corporate due diligence in mergers and acquisitions, subcontractor liability, and E-Verify.

CalWorkSafety offers detailed guidance on how I-9s are prepared and completed.

We assist with reviewing I-9 records and training employees on how to handle the I-9 process properly. For more information send an email to: dondressler1@hotmail.com or call us at: 949-533-3742.

The Bottom Line:
Our Virtual HR Department offers effective hands-on Management and Staff training dealing with Mandated Regulations. By simplifying the employee relations and compliance elements we help clients reduce workers’ compensation premiums, prevent discrimination and harassment claims, and settle/avoid employee claims. To learn more about preparing for 2019 HR compliance, call us at 949-533-3742 or email:
dondressler1@hotmail.com

Visit our website: www.calworksafety.com or Call: 949-533-3742

Ready For The 2018 New Employment Laws for CA Employers?

Not to worry, here is a summary …

For 2018, California employers must be watchful of many new laws, and most are very important, including:

• Changes in minimum wages
• Changes required for their employment applications as a result of new state laws including questions they can ask job applicants.
• New ICE (Immigration and Customs Enforcement).
• Required Changes including updating with their Employee Handbooks on topics about:
  • Dealing with equal employment policies
  • Their training for sexual harassment
  • Small employers with 20-49 employees – should prepare how to deal with “Baby Bonding” leave for employees with new children.

Below is a summary of some of the significant other topics employers MUST comply to next year.

Minimum Wage:

• Large businesses with 26 or more employees began complying January 1, 2017. The current minimum wage for large businesses is $10.50 per hour; the rate will increase to $11.00 per hour on January 1, 2018. Large businesses will reach the $15 per hour minimum wage in 2022.

• Small businesses with 25 or fewer employees had a one-year delay and will see their first minimum wage increase on January 1, 2018; the minimum wage will increase from $10.00 per hour to $10.50 per hour. Do not forget that many cities and some counties have local minimum wage ordinances as well – most of these call for increases on July 1, 2018.

When Hiring:

Salary History do not ask an applicant for employment their salary history, either on an application form or in an interview or otherwise; upon request you must provide the pay scale to an applicant for the position they are applying for.

When Hiring – Criminal History:
If an employer has five or more employees, it is unlawful to inquire about criminal or conviction history of an applicant until after a conditional offer of employment to the applicant; If you obtain or review information (which can only relate to conviction history, not juvenile criminal history or actions related to marijuana offenses more than two years old) and intend to deny an applicant employment based even in part on such conviction history, you must document that you have made an individual assessment whether the conviction history has a direct and adverse relationship with the specific duties of the job justifying denying the applicant the position. Consideration must include:

• Nature and gravity of the offense
• Elapsed time that has passed since occurrence
• Nature of the job; If you have made a preliminary decision not to employ an applicant based on conviction history, the applicant must be notified of the decision in writing, given a copy of the history report, notice of a right to respond, and have five days to respond. If told by the applicant that he/she disputes the accuracy of the report, the applicant has five additional days to respond to the notice. Any final decision by the employer must be in writing.

Handling of Immigration I-9 Forms:

Do not allow any government entity, and specifically DO NOT ALLOW the Customs & Immigration Service, or U.S. Homeland Security to obtain or review your records UNLESS provided a Notice of Inspection. If you receive a Notice of Inspection for I-9 forms, you must post a notice for employees immediately informing them that the process will occur. If the I-9 review raises questions about any particular employee’s status, that employee must be informed and allowed to participate to clarify their status. Also, employers can only “reauthorize” a I-9 form as required by the process.

Employment Policies:

Reproductive Health Rights: Employees have the right to and freedom to make personal decisions regarding reproductive health including the timing of use of birth control drugs and devices, or medical services. These rights are now protected by the Equal Employment provisions of California law and employers may not discriminate on the basis of employee decisions. Employee handbooks must also contain a notice of employee rights and remedies regarding this matter.

New Parent Leave Act:

Employers who have from 20-49 employees as of January 1, 2018 are required to allow qualified employees to take unpaid leave for up to 12 weeks to bond with a new child within one year of a child’s birth, adoption or placement for foster care. There are qualifications defining that the employee must have completed 1,250 hours of work for the company within the past year, and work at a location where there are at least 20 employees within 75 miles of the worksite. NOTE: This leave is in addition to pregnancy leave, which can be for up to four months, and employees are entitled to continuation of health benefits during this leave.

Harassment Training Re: Gender Identity, Expression & Sexual Orientation:  Training which is required regarding prevention of sexual harassment and bullying behavior now must include training inclusive of harassment based on gender identity, gender expression and sexual orientation, in the training all employers with 50 or more employees must provide supervisors and managers for two hours every two years.

For a more detailed review – Click Here.

U.S. Citizenship and Immigration Services Issues Guidance on SB 60 Drivers Licenses

U.S. Citizenship and Immigration Services on May 19, 2015 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:
• Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.
• Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).
In addition, the guidance notes that:
• An employer accepting such a license as a List B identity document in the Form I-9 process must (as for all types of List B documents) also examine a List C document establishing the individual’s employment authorization.
• Under a regulation of the Department of Homeland Security, which houses USCIS, whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.
The last point above is made in the context of the federal ban against employing or continuing to employ an employee with knowledge that the employee is not eligible to be employed in the U.S. The DHS regulation noted above states that a “knowing hire” violation can be based on either actual knowledge or constructive knowledge of unlawful status. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.
The omission from the guidance of any statement that an employer must do anything other than accept such a license as a List B identity document in the Form I-9 process indicates the federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license—at least where the employer has no other reason to doubt the employee’s claim.

What Does Presidents Exec Order on Undocumented Individuals Mean for Your Organization?

President Barack Obama’s announcement of executive action to expand the population of currently undocumented individuals who will be allowed to remain and work legally in the U.S. will take time and many details to fully understand.
In the President’s November 20, 2014, televised address to the nation, key initiatives of the President’s Immigration Accountability Executive Actions include:
• Expansion of Deferred Action for Childhood Arrivals (DACA): Currently, certain individuals who arrived in the United States as children are eligible for DACA protection and corresponding employment authorization. The announced executive action will expand the pool of individuals eligible for the DACA program and extend the period of DACA status and corresponding employment authorization from two years to three years.
• Creation of Deferred Action for Parents (DAP): This new program will allow parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present in the United States since January 1, 2010, and who pass background checks and pay taxes, to be eligible to apply for deferred action and corresponding employment authorization. DAP status and employment authorization will be for a three-year period.
Estimates are that up to five million currently undocumented individuals may be eligible for Deferred Action. While individuals granted Deferred Action will be eligible for work authorization, employers must be particularly cautious in addressing current employees who may come forward under these initiatives. Until employees actually present such official documentation, if they come forward to you, that will be evidence of their being unlawfully employed and you must terminate them under current Federal law or be liable for knowing employment of undocumented aliens.
The President also announced new efforts to increase the responsiveness of the employment-based legal immigration system to the needs of employers, some of which may affect your organization. These efforts include:
• Employment Authorization for H-1B Dependents: Currently, H-4 dependents of holders of H-1B non-immigration visas are precluded from employment. U.S. Citizenship and Immigration Services (USCIS) will finalize and promulgate a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
• Expansion of Optional Practical Training (OPT) for Foreign Students and Graduates from U.S. Universities: Currently, students enrolled in a science, technology, engineering, or math (STEM) academic degree program may gain practical training work authorization for 17 months in addition to the 12-month period typically available for post-graduate practical training employment. New regulations will expand and extend the use of OPT for foreign students, consistent with existing law.
• Greater Consistency in the L-1B Visa Program: For years, employers have sought guidance and clarity regarding the definition of “specialized knowledge” employees under the L-1B non-immigration program to better assess their prospective employees’ qualifications and prepare petitions accordingly. USCIS has stated that it will issue clear, consolidated guidance on the meaning of “specialized knowledge” as early as this year or the beginning of 2015.
• Increasing Worker Portability: USCIS will issue guidance with respect to the types of job changes that constitute “same or similar” jobs under current law. It also will remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays. Similarly, the adjustment process for individuals who are the beneficiaries of approved I-140 Immigrant Petition for Alien Worker will be amended by regulation so the sponsored worker is eligible to file for adjustment of status sooner.
While it will be months before many of the initiatives will be fully implemented, employers should begin preparing for these changes now, including inquiries from employees regarding the impact of this far-reaching executive action.
Thanks to Jackson Lewis p.c. for information for this article.