I9 Training

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I-9 Training

• The Catholic University of America
• July 2003

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Presented by

• International Student and Scholar Services
• The Catholic University of America

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The Immigration Reform Control Act of 1986

• Established an employment eligibility
  verification system.
  
• Established anti-discrimination provisions
  designed to keep employers from discriminating
  against people because of accent, national
  origin, a foreign look

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• By statute, it is illegal to hire anyone not
  legally authorized to work in the U.S.
  
• INA 274A(a)(1)
• 8 USC 1324a

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Legal Concepts/Definitions and Immigration Basics

• Concepts and Definitions

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Hire

• Actual commencement of employment
• 8 CFR 274a.1(c)

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Employee

• An individual who provides services or labor for
  wages or other remuneration.
  
• 8 CFR 274a.1(f)

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Employee, contd

• Note the government draws a distinction between
  volunteer positions which are charitable in
  nature and unpaid employment in which a worker
  would have been hired if not for the unpaid worker

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Employer

• an agent or anyone acting directly or indirectly
  in the interest of the person/entity who engages
  the services/labor of an employee for wages or
  other remuneration.
• 8 CFR 274a.1(g)

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Casual Hire

• Sporadic, irregular or intermittent employment
  (such as a domestic worker)
  
• 8 CFR274a.1(f) and (h)

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Independent Contractor

• An individual/entity who carries on independent
  business, contracts to do a piece of work
  according to his/her own means and methods and is
  subject to control only as to results
• 8 CFR 274a.1(j)

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Independent Contractor, contd

• Elements Determining Independent Contractor
  status
  
• Who supplies tools/materials?
• Are services available to the public?
• Is work done for other clients?
• Does the individual have the opportunity for
  profit or loss as a result of the labor?

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Independent Contractor, contd

• Elements Determining Independent Contractor
  status
  
• Has the individual invested in facilities for
  work?
  
• Who determines the order, sequence and time that
  the work is done?

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Constructive Knowledge

• Constructive Knowledge is knowingly hiring or
  continuing to employ an unauthorized alien.
  
• Knowledge is the actual knowledge as well as
  knowledge that may be reasonably inferred by
  certain conditions

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Legal Concepts/Definitions and Immigration Basics

• Immigration Basics

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Basis for U.S. work authorization

• Birth (born in U.S. or U.S. territory, Native
  American, born to US parents abroad)
  
• Through Bureau of Citizenship and Immigration
  Services (BCIS)
  
• Naturalization
• Refugee or Asylee
• Permanent Resident
• Nonimmigrant granted temporary work permission

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Work permission by Birthright

• Person born in the U.S.
• Person born in Puerto Rico
• Person born in U.S. Virgin Islands
• Person born in Guam
• Person born abroad of U.S. parents
• Person who was found in the U.S. when under the
  age of 5
  

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Employment Incident to Statusfor any Employer 8
C.F.R. 274a.12(a)

• Permanent residents
• Lawful Temporary Resident
• Person admitted as a refugee
• Person paroled into the US as a Refugee
• Individual granted asylum

• Individuals in these statuses may work for any
  employer and should all have documents issued by
  the Immigration Service as evidence of work
  authorization.

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Employment Incident to Statusfor Any Employer 8
C.F.R. 274a.12(a) contd

• Person in K-1
• N-8 or N-9 status holder
• Citizen of Federated States of Micronesia or of
  the Marshall Islands
  
• K-2 status
• Person granted withholding of deportation

• Individuals with these classifications are
  automatically allowed to work for their sponsor
  because the U.S. government went through some
  sort of authorization process prior to granting
  them the status.

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Employment Incident to Statusfor Any Employer 8
C.F.R. 274a.12(a) contd

• Individuals in these statuses may work for any
  employer and should all have documents issued by
  the Immigration Service as evidence of work
  authorization.

• Person granted extended voluntary departure
• Person granted Temporary Protected Status
• Person granted Voluntary Departure under Family
  Unity program

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Employment Incident to Statusfor Any Employer 8
C.F.R. 274a.12(a) contd

• Person granted Family Unity Benefits
• Alien in V status
• Person in T-1 status

• Individuals in these statuses may work for any
  employer and should all have documents issued by
  the Immigration Service as evidence of work
  authorization.

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Employment Incident to Statusfor Specific
Employer 8 C.F.R. 274a.12(b)

• A-1 or A-2 Foreign government official
• A-3 employee of foreign govt official
• C-2, C-3 foreign govt official in transit
• E-1, E-2 Treaty Trader or investor

• These individuals can only work for their
  sponsoring employers. Evidence of their status
  and employment eligibility are typically the
  foreign passport and the I-94 card.

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Employment Incident to Statusfor Specific
Employer 8 C.F.R. 274a.12(b) contd

• F-1 student on campus or CPT (as authorized on
  I-20)
  
• G-1,G-2, G-3, G-4 rep. of intl organization
• G-5 personal employee of rep. of intl org.
• H-1B, H-2A, H-2B, or H-3, temporary worker or
  trainee
  

• These individuals can only work for their
  sponsoring employers. Evidence of their status
  and employment eligibility are typically the
  foreign passport and the I-94 card.

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Employment Incident to Statusfor Specific
Employer 8 C.F.R. 274a.12(b) contd

• These individuals can only work for their
  sponsoring employers. Evidence of their status
  and employment eligibility are typically the
  foreign passport and the I-94 card.

• I, rep. of information media
• J-1 exchange visitor
• L-1 intra-company transferee

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Employment Incident to Statusfor Specific
Employer 8 C.F.R. 274a.12(b) contd

• O-1 and O-2, alien with extraordinary ability in
  the sciences, arts, education, business or
  athletics and their support personnel
  
• P-1, P-2 or P-3 athlete, artist or entertainer

• These individuals can only work for their
  sponsoring employers. Evidence of their status
  and employment eligibility are typically the
  foreign passport and the I-94 card.

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Employment Incident to Statusfor Specific
Employer 8 C.F.R. 274a.12(b) contd

• Q-1 cultural exchange
• R-1, Religious worker
• NATO 1 through 6, military officers of NATO
• NATO 7 personal employee of NATO military
  personnel
  
• TN professional under NAFTA

• These individuals can only work for their
  sponsoring employers. Evidence of their status
  and employment eligibility are typically the
  foreign passport and the I-94 card.

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Nonimmigrants who can apply for work permission

• F-1 (for off campus employment or post completion
  practical training)
  
• J-2
• L-2
• People in the final stages of green card process
  applying for Adjustment of Status.

• This individuals must apply for the Employment
  Authorization Document AND obtain it prior to
  commencing employment.

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Nonimmigrants not allowed to work

• Visitors B-1, B-2, WB or WT
• F-2
• H-4
• O-3
• TD
• Honoraria payments may be permissible from
  academic institutions.

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Sidenote Nonimmigrants and Honoraria

• Permissible only for
• B1, B2, WB or WT if activity is academic in
  nature, of less than 9 days duration and has not
  received more than for honoraria payments in the
  last 6 months. No limit on can still reimburse
  expenses. Is taxable.
• J-1 professors/scholars if authorized by letter
  from Responsible Officer or Alternate Responsible
  Officer.

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Visa Vs. Immigration Status
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Visa Stamp
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Form I-94

• Form I-94 serves as documentation of legal
  entry in the U.S. in a specific status for a
  specific period of time.

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Important Parts of the I-94

• Admission Number
• Legal status in which the individual is
  admitted.
  
• Date by which individual must leave. For those
  with work permission inherent in status, last day
  of authorized employment.
  
• Employer/university sponsoring status would be
  annotated here.

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Form I-20

• SEVIS I.D.
• Name of student
• Name of School
• Financial support
• Special comments

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F-1 Employment Authorizations (usually for off
campus work)

• Dates covered,
• Employer Name and
• Location

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Form DS-2019

• Name.
• SEVIS I.D.
• Worksite/location.
• J-1 Sponsor.
• Financial support.
• If not sponsored by CUA, need letter from J-1
  program to confirm work authorization.

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Form I-797

•  Approval notice received when someone applies
  for a change of nonimmigrant status.
  
• Petitioners/Applicants Section
• Aliens Evidence of approval
• New I-94 card

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Completing the Form I-9
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Who Must Complete an I-9?

• All employees hired after November 11, 1986.
• Re-hired employees who have not been working for
  the University for more than 12 months.
  

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By When Must the I-9 Be Completed?

• Section 1 is to be completed by the employee at
  the time employment begins (Day 1).
  
• Section 2 must be completed by the employer by
  the 3rd day of employment. (By the 1st day of
  employment if the individual will work 3 or fewer
  days.)
• Section 3 must be completed by the expiration
  date of the foreign nationals work permission

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Basic Rules

• Employee should always be given the choice of
  what documentation to present.
  
• You cannot ask to see specific immigration
  documentation.
  
• Do not over document stay on one side or the
  other of the documentary line dividing List A
  documents from List B and C.

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Section 1 of the I-9
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Section 1 problem areas

• Social Security Number Often foreign nationals
  have applied for, but do not yet have a social
  security number. They should write pending in
  the box. The form should be updated once the SSN
  is received. Any changes should be initialed and
  dated.

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Section 1 problem areas

• The last two of the three boxes.
• A __________ this is the number on the Alien
  Registration Card or EAD card
  
• Alien Authorized to work until __/__/__
• (Alien or Admission ________) expiration
  date of work permission and the number either on
  the EAD card or on the I-94 card

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Section 1 problem areas

• Make sure the employee signs and dates the form.
  If not, employer assumes liability for false
  statements in Section 1.

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Section 1 Employer Role

• Employers role in Section 1 is to review it for
  completeness.

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Section 2 of the I-9
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Employers role in Section 2

• Establish the identity of the employee
• Verify employment eligibility

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List A Documents on the I-9 (Establish both
Identity work permission)

• U.S. Passport
• Certificate of U.S. Citizenship (Form N-560 or
  N-561)
  
• Certificate of Naturalization (Form N-550 or
  N-570)
  
• Unexpired foreign passport with
• I-551 stamp or
• I-94 card attached indicating unexpired
  employment authorization
  
• Alien Registration Receipt Card with photo (Form
  I-151 or I-551)
  
• Unexpired Temporary Resident Card (I-688)
• Unexpired Employment Authorization Card (I-688A)
• Unexpired Reentry Permit (I-571)
• Unexpired Refugee Travel Document (Form I-571)
• Unexpired Employment Authorization Document (Form
  I-688B)

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Foreign Passport

• I-551 stamp
• Temporary evidence of permanent residency status.
  Given when awaiting the actual card when just
  approved for the green card or when an
  application for renewal/replacement is pending.
• I-94 card (with I-20 or DS-2019 if I-94 indicates
  F-1 or J-1 status)
  
• I-94 should be annotated with name of sponsoring
  employer/school.
  
• This option cannot be used by L-2 or J-2.

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Revised List A Documents

• U.S. Passport
• Unexpired foreign passport with
• I-551 stamp or
• I-94 card attached indicating unexpired
  employment authorization
  
• Alien Registration Receipt Card with photo
  (I-551)
  
• Unexpired Temporary Resident Card (I-688)
• Unexpired Employment Authorization Card (I-688A)
• Unexpired Employment Authorization Document (Form
  I-688B)
  

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List B Documents on the I-9 (Establish only
Identity)

• Drivers license issued by State or outlying
  territory of the U.S.
  
• Federal/State I.D. card
• School I.D. card
• Voters registration card
• U.S. Military card/draft record
• Military Dependent ID

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List B Documents continued

• Coast Guard Merchant mariner Card
• Native American Tribal Document
• Canadian drivers license
• If under 18
• School record/report card
• Clinic, hospital, doctor record
• Day-care or nursery school record

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List C Documents(Establish employment
authorization only)

• U.S. Social Security card (other than one stating
  it is not valid for employment)
  
• Certification of Birth Abroad issued by the
  Department of State (Form FS-545 or Form
  DS-1350)
  
• Original or certified copy of a birth certificate
  issued by a state, county, municipal authority or
  outlying possession of the United States bearing
  an official seal

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List C Documents (contd)

• Native American Tribal Document
• U.S. Citizen I.D. Card (INS Form I-197)
• I.D. card for use of a Resident Citizen of the
  United States (INS Form I-179)
  
• Unexpired employment authorization document
  issued by the INS (other than those listed under
  List A)

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Reviewing the Documents

• If documents appear to be genuine, you must
  accept them, unless you have knowledge to the
  contrary.
  
• However, if you have knowledge that they are not
  right, you must explore further.
  

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Portability Provisions of the H-1B

• H-1B status allows someone who already holds and
  H for another employer to port or begin working
  for a second employer who has already filed an
  H-1B petition with Immigration on behalf of the
  employee even before the petition for the new
  employer is approved.

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Documentation for H-1 Portability

• No clear regulatory guidance for documentation
• Suggestion
• Indicate H Portability on I-9.
• Attach copy of Receipt Notice issued by BCIS.

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If you are unsure of the documents, you may
contact

• International Student Scholar Services, CUA
• 202-319-5618
• Or (as a last resort)
• Office of Business Liaison, Department of
• Homeland Security
• Hotline [phone]

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On-line access to copies of I-9 documents and
guides

• http//www.immigration.gov/graphics/lawsregs/handb
  ook/hand_emp.pdf

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Copying supporting documentation

• CUA policy is to copy the documentation presented
  and examined during the I-9 process.
  
• Copies must be made of documents presented by
  each employee, not just the foreign ones.

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Reverification

• Must be done by the expiration date of employment
  authorization

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Section 3 of the I-9
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Section 3 of the I-9

• Must be completed on or before the expiration
  date of the employment authorization indicated in
  either Section 1 or Section 2 of the original I-9.

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Section 3

• Employee need only show documentation
  establishing continued ability to work identity
  documents not needed as employer should already
  know him/her.
• Employer must record information on document(s)
  presented.
  
• May need to reverify if employee presented
  evidence of temporary work permission.

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The 240 Day Rule 8 C.F.R. 274a.12(b)(20)

• A-3
• E-1 or E-2
• G-5
• H-1, H-2A, H-2B, or H-3
• I
• J-1
• L-1
• O-1 or O-2
• P-1, p-2, P3
• R-1
• TN

• Individuals who hold the following nonimmigrant
  statuses and who file for an extension of their
  status in a timely manner, may continue to work
  for their employer for an additional 240 days
  from the expiration date of their current status

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Documentation for 240 day rule

• No clear regulatory guidance for documentation
• Suggestion
• Indicate extension pending on I-9.
• Indicate the end of 240-day period as expiration
  of work permission to trigger another
  reverification.
  
• Attach copy of Receipt Notice issued by BCIS.

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Retention of I-9s
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Retention

• I-9 must be kept for the later of
• Three years from the date of hire
• Or
• One year after the termination of the employees
  employment.

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Rehires
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I-9s for rehires

• You may update a previously completed I-9 for a
  rehired former employee by completing Section 3
  if
  
• Rehire occurs within 3 years of the original I-9
  completion and
  
• The employee is eligible to work on the same
  basis as when the original I-9 was completed.
  

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I-9s for rehires

• Alternatively, you may choose to complete
  sections 1 and 2 of a new I-9

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Penalties for noncompliance
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Civil Penalties for employing unauthorized workers
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Paperwork violations (applies to initial hires
only)

• 100 - 1,000 for each I-9

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Executive Order 12989 (Feb. 13, 1996)

• Federal contractors who employ illegal aliens may
  be barred from obtaining/bidding for federal
  grants and contracts for up to one year.
  
• Bar can be extended for additional periods of
  time in increments of a year.
  
• 48 CFR 9.406-2(b)(2) and 48 CFR 9.406-4(b)

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Types of Violations

• Technical/Paperwork
• Substantive

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Technical/Paperwork Violations

• Section 1
• No employee maiden name, address or DOB
• No A next to phrase A Lawful Permanent
  resident
  
• No Alien or Admission next to phrase Alien
  authorized to work until
  
• No employee attestation date
• Attestation not completed at time of hire (only
  if employee hired after 9/30/96)
  
• No preparer, name address, signature, date
• if appears in Section 2 or copy made of INS docs
  for Section 2

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Technical/Paperwork Violations

• Section 2
• No title, doc , or expiration date of
  document(s) examined
  
• No business title, name address
• No date of hire
• No employer attestation date
• Attestation not completed within 3 days of hire
  (if date of hire falls on/after 9/30/96)
  
• If copy retained of examined docs

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Technical/Paperwork Violations

• Section 3
• No document title, or expiration date
• No date of rehire
• if copy of examined document is retained

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Substantive Violations

• Big violation
• No I-9 prepared or presented

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Substantive Violations

• Section 1
• No employee name
• No check mark indicating basis of employees
  permission to work in US
  
• No A next to phrase A Lawful Permanent
  resident
  
• No Alien or Admission next to phrase Alien
  authorized to work until
  
• No employee signature
• Attestation not completed at time of hire if
  employee hired before 9/30/96
  
• if appears in Section 2 or copy made if INS docs
  for Section 2

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Substantive Violations

• Section 2
• Improper documents reviewed or verified
• No documentation title, or expiration date
  unless a copy of examined documents is attached
  
• No employer attestation signature
• Attestation not completed within 3 days of hire
  if employee hired before 9/30/96 or if employee
  only works for 3 days or less)
  

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Substantive Violations

• Section 3
• Improper documents reviewed or verified
• No documentation title, or expiration date
  unless a copy of examined documents is attached
  
• No signature
• No date
• Section 3 dated after date work authorization
  expired

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Factors that Affect Assessed Penalties

• Size of employer
• Good faith effort to comply
• Seriousness of violation
• Intentional falsification
• Deliberate refusal to prepare I-9
• Negligent failure to prepare I-9
• Partial preparation of I-9, but employee/employer
  not signing
  
• Employer failure to sign
• Improperly checked boxes

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Factors that Affect Assessed Penalties

• Employee authorized to work
• Employer history of violations
• Other factors
• Repeat offense
• Timely completion or inaccurate completion
• Altered or backdated I-9
• Employers overall practice
• Evidence of employer concealment of unlawful
  status
  
• Reasonable care and diligence