USCIS Releases Revised I-9 and Homeland Security Puts Employer Records under a Microscope
SUMMARY
The Employment Eligibility Verification Form I-9, will continue to be valid for
use beyond June 30, 2009. U.S. Citizenship and Immigration Services (USCIS) announced
that the Office of Management and Budget (OMB) has approved the continued use of
the current version of Form I-9 through August 31, 2012. Consequently, USCIS has
amended
the form to reflect a new revision date of August 7, 2009. Employers may
use the Form I-9 with the revision date of either Aug. 7, 2009 or Feb. 2, 2009.
The revision dates are located on the bottom right-hand portion of the form.
Additionally, in the Obama administration's first major workforce-compliance enforcement
action, Immigration and Customs Enforcement (ICE) recently notified 625 employers
of plans to audit their I-9 forms and files. The Department of Homeland Security
(DHS), the agency in charge of ICE, announced that it served "Notices of Inspection"
to each of these organizations to mark the beginning of the ongoing investigations.
Many more audits on both a random and targeted basis are expected in the coming
months. The full scale audit will target employers across the country, with an initial
emphasis on companies located in New York and California.
WHO DOES THIS AFFECT
All U.S. employers must complete and retain a Form I-9 for each individual they
hire to work in the United States. This includes citizens and noncitizens.
The form must be available for inspection by authorized U.S. Government officials.
Therefore, employers should take proactive steps to confirm that their new hires
and current employees (and the employees of their vendors and contractors) are authorized
to work under federal immigration law.
WHAT YOU NEED TO DO NOW
Employers must evaluate their current compliance practices and take corrective actions
to ensure a fully authorized workforce. Employers should be prepared to supply required
paperwork (including original I-9s) to ICE within 72 hours of receiving notice of
an audit. In preparation, it is recommended employers take the following steps:
- Be sure that you are using the most current version of the I-9 for all new hires. Both
the employee and employer should complete all I-9 forms prior to filing and within
three (3) days of the employee's start date. NOTE: It is recommended
that you begin to use the newly revised 08/31/12 version.
- Ensure you have retained a valid and complete I-9 for each employee for three years
after the date of hire or for one year after employment is terminated, whichever
is later.
- It is recommended that I-9 forms should be removed from both current and terminated
employee files and stored in binders, separated into current and terminated employees.
- Conduct an internal I-9 audit and take necessary steps to reconcile missing or incorrect
information, check retention rates and dispose of documents that no longer must
be kept. It is recommended that employers document the internal audit initiative
and store the notice with the organization's I-9 records. Documentation should include
the date the audit was conducted and indicate that all documentation was updated
as of that date to ensure compliance.
- Ensure you have a system to notify you before a worker's employment permission must
be re-verified. The employer should track visa holders to ensure they are reviewing
updated documents in compliance with Homeland Security guidelines. Employees working
in the United States on a visa program must provide updated documentation each time
their visa is renewed.
PENALTIES FOR NON-COMPLIANCE
Under the Immigration and Nationality Act and Homeland Security regulations, employers
face expensive civil fines for violating employment-eligibility (I-9) requirements.
Steep fines can also be levied for failing to maintain required immigration paperwork
and engaging in illegal discrimination based on national origin or citizenship status.
Furthermore, fines for knowingly employing an undocumented worker have increased
significantly and continue to escalate with increases in the cost of living. The
maximum fine now ranges from $11,000 to $16,000 per worker.
Penalties for federal and state immigration violations extend beyond costly civil
fines. Depending on the severity of the violation, executives, business managers,
human resources staff members, worksite supervisors, and union stewards may all
face potential civil and criminal liability for failure to abide by the immigration
laws. More severe penalties include: imprisonment, asset forfeiture, and debarment
from government contracting and/or from sponsorship of additional foreign workers.
ADDITIONAL INFORMATION
In addition to the items listed in the "What You Need to Do Now" section, the following
best practices are recommended to ensure your organization is in compliance:
- State Immigration/Workplace Enforcement Laws - Challenges are compounded for employers
doing business in multiple states, since many cities and states have passed laws
and ordinances that surpass federal law in enforcing additional immigration penalties.
More than a dozen states have their own immigration/workforce compliance laws and
over 1,000 immigration-related bills were introduced in the states in the first
quarter of 2009.
- Electronic Storage - Original paper records are allowed to be transferred to an
electronic recordkeeping system provided:
- The new medium is an accurate reproduction of the original paper copy (industry
standard is TIF or PDF formats).
- The electronic records can be converted into a paper copy which is fully legible
and given to the Department of Labor upon request.
- The records retained electronically represent a duplicate or substitute copy of
the original paper records.
- Identity Documents - Photocopying of the documentation provided by the employee
to support the I-9 information is not required. You may choose to copy or scan documents
presented by an employee, which you must retain with his or her Form I-9. Even if
you retain copies of documentation, you are still required to fully complete Section
2 of Form I-9. If you choose to retain copies of employee documentation, you must
do so for all employees, regardless of national origin or citizenship status, or
you may be in violation of anti-discrimination laws. Keep in mind that, because
USCIS does not expect you to be a document expert, you are only expected to reject
documents that do not reasonably appear to be genuine or to relate to the person
presenting them. Retaining a copy of these records may show a good faith effort
to validate documentation.
- Compliance Training - Provide training for recruiters, Human Resources professionals,
and managers to identify and avoid the many pitfalls involved with completing, maintaining,
and re-verifying your company's I-9 forms.
- Spanish Speaking Employees - The Spanish version of Form I-9, may be filled out by
employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees
in the 50 states and other U.S. territories may print this for their reference,
but may only complete the form in English to meet employment eligibility verification
requirements.
New York Extends Continuation of Coverage to 36 Months
SUMMARY OF NEW PROVISIONS
New York now requires insurance carriers to offer continuation of medical coverage
for up to 36 months, to plan participants who lose coverage due to termination of
employment (for any reason, including gross misconduct) or reduction in hours.
WHO DOES THIS AFFECT
The new provisions will apply to plan participants who are covered under a group
health insurance plan that is issued in New York. This also applies to health plans
that are subject to either COBRA or the New York state continuation of coverage
laws. It does not apply to either self-insured health plans or to health insurance
policies issued outside of New York. These changes are retroactively effective as
of July 1, 2009.
WHAT YOU NEED TO DO NOW
Employers with New York health insurance or HMO policies should do the following
prior to the next renewal date of the policy:
- Responsible party (insurance carrier or COBRA administrator) should provide affected
plan participants with a notice of this change prior to the renewal date of the
health insurance policy.
- Employee communications and documents (including employee handbook) should be changed
to indicate 36 months of continued coverage must be offered due to a termination
of employment or reduction in hours.
Delaware Extends Discrimination Protection to Include Sexual Orientation
SUMMARY OF NEW PROVISIONS
On July 2, 2009, Delaware signed into law Senate Bill No. 121, which adds the term
"sexual orientation" to an existing list of prohibited practices of discrimination.
The bill prohibits discrimination against a person on the basis of sexual orientation
in housing, employment, public works contracting, public accommodations and insurance.
Delaware joins twenty other states and the District of Columbia in prohibiting discrimination
based on sexual orientation, specifically:
- Thirteen states have legislation prohibiting discrimination on both sexual orientation
and gender identity. (California, Colorado, Iowa, Illinois, Maine, Minnesota, New
Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District
of Columbia)
- Nine states, including Delaware, have laws prohibiting discrimination on the basis
of sexual orientation. (Connecticut, Hawaii, Maryland, Massachusetts, Nevada, New
Hampshire, New York, Wisconsin and Delaware)
- Five states have an executive order, administrative order or personnel regulation
prohibiting discrimination against public employees based on sexual orientation
and gender identity. (Indiana, Kansas, Michigan, Ohio, and Pennsylvania)
- Three more prohibit discrimination against public employees based on sexual orientation
only. (Arizona, Montana, and Virginia)
- Some states and local governments also prohibit workplace discrimination based on
gender identity (an individual's self-identified gender, versus anatomical sex at
birth). Currently, the District of Columbia and California, Colorado, Hawaii, Illinois,
Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, and Vermont
have gender identity discrimination statutes on the books. Furthermore, courts have
sometimes interpreted other antidiscrimination statutes, like those protecting individuals
based on their gender, to include gender identity in some states without specific
statutes.
DEFINING THE TERMS
What is Sexual Orientation?
"Sexual orientation" is defined as heterosexuality, homosexuality or bisexuality.
Transgendered employees and gender identity issues are not covered by the changes
in the law.
What does this mean for employers?
The law amends Delaware's Discrimination in Employment Act, prohibiting discrimination
based on sexual orientation in employment. Under the new law, which is effective
immediately, employers may not discriminate based on sexual orientation with respect
to compensation, terms, conditions, or privileges of employment. The new law does
not provide additional protection to an individual based on transgendered status.
The law imposes no affirmative obligation upon employers to recruit or hire job
candidates based on their sexual orientation. The act provides that employers are
not obligated to offer health, pension or other benefits on the basis of sexual
orientation on the same terms as benefits afforded to the spouses of married employees.
Consequently, employers are not required to offer benefits received by married employees
to same-sex couples.
What about Religious Organizations?
Religious organizations may consider sexual orientation in their decision-making,
provided it is relevant to the views of the faith. However, if the organization
earns unrelated taxable income, they may not discriminate on the basis of sexual
orientation.
WHAT YOU NEED TO DO NOW
Delaware employers should update their employee handbooks to add sexual orientation
to their lists of protected characteristics. They should also educate their supervisors
on this change to the law.
FEDERAL LEGISLATION ON THE HORIZON
The Employment Non-Discrimination Act (ENDA) has been introduced in Congress to
broaden federal employment discrimination protections to include a ban on discrimination
based on sexual orientation and gender identity. The bill would make it illegal
for an employer to discriminate with respect to an individual's actual or perceived
sexual orientation or gender identity. This discrimination would be prohibited in
decisions regarding hiring, firing, compensation, and terms, conditions, or privileges
of employment.
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