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Navigating the rough seas of immigration law demands that companies wear life preservers for safety. GoffWilson announces an encore performance of last year’s winning seminar for Employers and Human Resource Professionals, “Form I-9 & E-Verify: What You Need To Know 2010”. Back by popular demand, the training workshop will take place on Friday, June 4, 2010 from 8:00 a.m. to 11:30 p.m. at Delta Dental Auditorium in Concord, NH. Participants earn three Human Resource Certification Institute (HRCI) continuing education credit hours for completing the training.
Completing I-9s correctly when there are out-of-state employees or employer locations in different states is a challenge for many companies. Unfortunately, there is no easy answer to this problem. The solution that will work best for your company depends upon the company set up and practices. To restate the I-9 basics, the employer must review original documents and complete the I-9 correctly and in a timely manner – there is no way around these requirements even for out-of-state offices or employees. If new out-of-state hires are not brought to a main office to complete paperwork, you must have an out-of-state employer representative or agent reviewing original documents. The completion timeline still holds as well; employees must complete Section 1 of the I-9 by the close of business on their first day, and employers have until the third business day to review original documents and complete Section 2. Is your company compliant? If you have concerns, or questions about instituting policies and procedures that will work for your company, please contact us – we would be happy to help.
On February 19, 2009, Attorney John Wilson hosted a webinar for the Society for Human Resource Management (SHRM), “You Can’t Afford to Wait: Filling out the I-9,” and discussed the upcoming changes to the I-9 form and the E-Verify requirement. Our firm received hundreds of questions and we posted PART I on 3.2.09, and the PART II last week. We appreciate the positive feedback have received in response to these postings. This week, we’d like to share ten more excellent, reoccurring questions. We believe that everyone can benefit from reviewing all of the questions and our responses. Check back soon for more questions.
38. Q. We are a government contractor but we also sub-contract. Are we responsible for our subcontractor’s I-9 compliance? Do they need to E-Verify as well?
A. You are not responsible for your subcontractor’s I-9 compliance. However, you may be liable if you know or have reason to know that the subcontractors are employing undocumented workers. You must have more than mere suspicion though. The subcontractors’ relationships with your company may require them to use E-Verify if they qualify as a subcontractor. The subcontractors are only required to use E-Verify if you (the federal contractor) contract directly with the government and have a qualifying federal contract, which contains the E-Verify clause.
39. Q. You mentioned [during the SHRM Webcast] that there are 2 types of I-9 errors, substantive, which cannot be corrected, and procedural, which can be corrected. Can you please explain the difference between the two?
A. There are two types of I-9 errors: technical/procedural errors and substantive errors. Technical/procedural errors can be corrected. An example of a Technical/Procedural error is forgetting to record a document title. If a copy of the supporting documentation has been kept, this is correctable without contacting the employee. The fines for these errors are more discretionary. A substantive error cannot be corrected, and if audited, your company will likely face a fine for these errors if the statute of limitations has not run. An example of a substantive error is not signing Section 2. If audited, your company will be fined for this.
On February 19, 2009, Attorney John Wilson hosted a webinar for the Society for Human Resource Management (SHRM), “You Can’t Afford to Wait: Filling out the I-9,” and discussed the upcoming changes to the I-9 form and the E-Verify requirement. Our firm received hundreds of questions and we posted the first bunch last week. This week, we’d like to share ten more excellent, reoccurring questions. We believe that everyone can benefit from reviewing all of the questions and our responses. As questions and answers are posted, we’ll be updating the SHRM Webcast Questions page on the bLAWg. You can read the content as it comes out through the posts, or bookmark the SHRM Webcast Question page and read them all at once. Check back soon for more questions.
29. Q. I noticed on the 2/2/09 I-9 Form, as well as the 6/5/07, I-9 Form it says, “Expires 6/30/09,” at the top. What does this mean? Can we still use the Form after these dates?
A. 6/30/09 is the date the form expires. Typically, we expect the USCIS to extend the date of validity of the form. We anticipate the form will be updated prior to the expiration date. However, in the past, U.S. Citizenship & Immigration Services has not updated the expiration date, leading to some confusion. The version of the form you should be using can always be found on the USCIS website and our bLAWg under the Blogroll.
30. Q. Can I use abbreviations on the form? Is there any part of the form I can fill out in advance?
A. We believe it is best practice to record information on the I-9 as completely as possible. Please write out full titles, for example, “Driver’s License,” “Social Security Card,” etc. State names may be abbreviated using their correct 2-letter abbreviation. The word, “Department,” may be abbreviated “Dept.,” and United States may be abbreviated, “U.S.” The employer completing the form may also abbreviate their title, if it is quite obvious. The employer information in Section 2 can be completed in advance. We have worked with companies who use an address stamp for this. The signature and date of Section 2 must be entered by hand.
On February 19, 2009, Attorney John Wilson hosted a webinar for the Society for Human Resource Management (SHRM), “You Can’t Afford to Wait: Filling out the I-9,” and discussed the upcoming changes to the I-9 form and the E-Verify requirement. Our firm received hundreds of questions and we are in the process of individually responding to each question. We received several excellent, reoccurring questions. We believe that everyone can benefit from reviewing all of the questions and our responses. For this reason, we are posting several of the frequently asked questions below for bLAWg readers to read. We will soon post these, and other questions, on the bLAWg, “I-9 F.A.Q.s” page. Check back soon for more questions.
1. Q. Are current employees who were hired prior to November 6, required to have I-9 form on file?
A: No. Employees who were hired before November 6, 1986 and have been continuously employed do not need Form I-9 on file.
2. Q: Do all current employees hired after 11/6/86 require to an I-9 form on file?
A: Yes.
3. Q: Are unpaid interns, contractors and employees on unpaid long term leave required to complete the I-9 form?
A: Unpaid interns and contractors are not required to complete an I-9 form. If an employee goes on an extended leave but remains on the payroll, he or she does not have to complete a new I-9 form upon returning to work. However if the employment is terminated and the employee is re-hired at a later time, a new I-9 form must be completed.
Many people are confused by the I-9 re-verification process. We’ve received numerous questions regarding this issue, including one recently, “Can you assist us with gathering a clearer understanding on the overall I-9 re-verification process? Do you know of any resources and/or tools that would be beneficial to our HR Department to refer to as a guideline?”
We are frequently asked questions about independent contractors and I-9 liability. For example, we were recently asked, “Who will be held liable if an audit reveals that our temporary employment agency is employing undocumented workers: the temporary employment agency or my company?”
The temporary employment agency is responsible for verifying the original documents and completing the I-9 form for each employee. The law is very clear that an employer cannot use a temporary agency, independent contractor, or subsidiary company to circumvent immigration laws. Therefore, it is advisable for your company to insert language into the contracts with temporary employment agencies and independent contractors that explicitly states that the company is responsible for verifying the identity and employment authorization of their employees.
With that language, the company must trust that the temporary employment agency or independent agency is properly completing the I-9 forms for their employees. If the company gains actual or constructive knowledge that the temporary employment agency or independent agency is not properly completing the I-9 forms for their employees, then it is advisable to terminate the contract. Please note that this must be actual or constructive knowledge, not mere suspicion or speculation. Also, the company does not have and should not create an affirmative duty to audit the I-9 forms of a temporary employment agency or independent contractor.
With the all the attention surrounding the new rule requiring federal contractors to use e-verify, GoffWilson has received a few questions…
When are College and Universities considered Federal Contractors under the New Rule?
A question that came to our firm asked, “If a university or college accepts federal grants for construction projects, or professors employed by the university accept research grants, is the university considered a ‘federal contractor’ under the new rule that requires federal contractors to use E-Verify to confirm the work status of their employees?”
The answer is “No.” The commentary to the new rule, the Federal Acquisition Regulation which is amended by the new rule, and the relevant federal statute all make a distinction between “contracts” or “procurement contracts” on one hand, and “grants” or “cooperative agreements” on the other.
In general, the government is to employ a “procurement contract” when “the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government.” 31 U.S.C. § 6303. (Emphasis added). A “grant agreement” is used “when [ ] the principal purpose of the relationship is to transfer a thing of value to the [ ] recipient to carry out a public purpose of support or stimulation authorized by a law of the United States instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the United States Government …” 31 U.S.C. § 6304 (Emphasis added).
If a university enters into a contract with the federal government, for example to conduct research directly upon the government’s behalf, then it is covered under the new rule, and must use E-Verify to confirm that employees who are employed in the United States have work authorization. However, unlike other federal contractors, universities do not have to verify the status of all new employees hired after January 15, 2009. Instead, universities only have to verify the status of employees assigned to work on the contract. E-Verify would not have to be used to confirm the work status of new employees not assigned to work on the contract.
