November 2016 held more than one shock for many in America. Not only did the presidential election cycle come to a dramatic close, but the government introduced its new Form I-9, Employment Eligibility Verification.
First introduced in 1986, the “Form I-9, Employment Eligibility Verification,” must be completed for every new employee. Over time, it has been expanded from one page to two. And its instructions have grown from less than a page, to six pages for the 2013 edition to 15 pages of Instructions – more than four for the employee section alone – for the 2016 edition in English and in Spanish.
In today's post, Gregg Rodgers, Chair of GSB’s Immigration Practice Group and member of our Hospitality, Travel & Tourism practice team, provides us with the latest updates regarding the federal processes that authorize employment for certain undocumented persons. Thank you, Gregg! – Greg
In my previous blog post, I discussed how recent Presidential Executive Actions had made it possible for certain people who reside in the U.S. without proper documentation to be assigned social security numbers and issued Employment Authorization Documents (EADs). Today’s post provides important information and updates to help an undocumented individual get and retain legal employment authorization. (An employer should never knowingly hire or continue to employ an unauthorized worker.) Most importantly, you will see that it has become extremely important to apply for renewal of an EAD earlier than the government had previously suggested. Getting the word out to employees affected by this may help keep them on your payroll.
Deferred Action for Childhood Arrivals (DACA)
You have probably heard about the President’s Executive Action on June 15, 2012, in which he authorized a procedure for many undocumented people in the U.S. to become authorized for employment. Individuals who demonstrate that they meet the guidelines may request consideration of “Deferred Action for Childhood Arrivals” (DACA) for a period of two years, subject to renewal for a period of two years, and may be eligible for employment authorization. By December 31, 2014, 638,897 people who came to the United States as children and who met the guidelines, had been approved for “deferred action” by the government.
DACA has made it possible for hundreds of thousands of undocumented people to become legally employed in the US for the first time, or to get employment authorization that they could present to their current employer to update Form I-9 information.
Many people have already obtained a two-year EAD and have applied for or are now ready to apply for renewal. Employers should know that, for this group of individuals, employment can occur only after the presentation of a valid EAD and cannot continue past its expiration date unless the employee presents another EAD or other documentation from the List of Acceptable Documents. Having applied for renewal of an EAD or even presenting proof of the approval of an EAD that has not yet been received is not enough to allow continued employment.
But renewing an EAD has become a challenge. Historically, the government discouraged the filing of an Application for renewal of an EAD more than 120 days before its expiration. Most people applied between that date and 90 days before its expiration because, by regulation, the government has 90 days from the date of receipt of the application to adjudicate it, or it is required to grant an EAD for a period not to exceed 240 days. Unfortunately, the government has not met its required adjudication or issuance obligations in most cases over the past several months, resulting in the inability to confirm employment authorization and the subsequent termination of employment for those whose EADs have been delayed. Some employers have treated the termination as temporary, allowing a return to employment for those affected by these delays after the new EAD is presented.
Just this month, the government acknowledged the problem and began to encourage applicants to submit renewal requests 150 to 120 days before the current period of DACA and employment authorization is set to expire. Employers are encouraged to notify DACA-authorized employees of this procedural change.
Implementation of Executive Action of November 20, 2014 Delayed
My January blog post also referenced the President’s Executive Action of November 20, 2014, which had two important issues relevant to this post. However, a temporary injunction was issued on February 16, 2015, that prevents the government from accepting requests as noted below. People interested in understanding more about these issues can read more and register with the federal government to get email updates regarding the status of this important program.
The 2014 Executive Action expanded DACA in several ways. If the injunction is lifted, it could apply to applicants of any age who meet the other requirements (whereas DACA applies to only those under the age of 31 on June 15, 2012) and employment authorization would be expanded from two years to three years.
Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)
Another significant part of the now-enjoined Executive Action of November 20, 2014 includes authorization for parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, provided that they have lived in the United States continuously since January 1, 2010, and pass required background checks. This is known as “Deferred Action for Parents of Americans and Lawful Permanent Residents,” or DAPA.
Where Do We Go From Here?
Maintaining a loyal and stable workforce is important. I fully expect that expanded DACA and DAPA will be authorized in the relatively near future. It can be a good idea to monitor the litigation because, if the injunction is lifted, the government can be expected to move quickly to begin accepting applications for expanded DACA and DAPA. In the meantime, you may want to urge anyone who already has a DACA-based EAD to apply for renewal within the newly announced 150 – 120 day window as the best way to assure the likelihood of continuous employment authorization for them.
Gregg Rodgers chairs GSB’s Immigration Practice Group and is a member of our Hospitality, Travel & Tourism practice team. His post today provides important steps to take when employers are faced with an employee with a new SSN or Employment Authorization Document. Thank you, Gregg! - Greg
How would you respond if a valued, long-time employee notified you that she has a new social security number (SSN) and/or an Employment Authorization Document (EAD) that includes different information about her than in your current records? This happens for hotel and restaurant employees more often than you may realize. Being ready to act quickly, and legally, can be important for you, the employee, labor relations (if in a collective bargaining situation) and your business.
The first question that many employers want to ask is, “Why did your number change?” The employee may voluntarily provide that information without you asking. But do you want or need to know, and can you believe whatever explanation is provided? The safer course of action is to proceed with a protocol that you can apply uniformly in all situations.
What could be the reason for assignment of a “new” social security number?
There are few situations in which the Social Security Administration (SSA) will change someone’s legitimate SSN, including witness protection, domestic violence issues, the correction of an SSA error in which it assigned the same number to multiple individuals, or because of identity theft. But otherwise, the most common reason to report a changed SSN to an employer is because the person has only recently become legally authorized to work and the number previously used was not legitimate.
President Obama’s Executive Actions in mid-2012 and again in late 2014 have made it possible for certain people who came to the U.S. without documentation as children, or for certain undocumented parents of U.S. citizens or Lawful Permanent Residents, to be issued time-limited EADs, which have allowed them to be issued legitimate SSNs. Those eligible for consideration under these programs, called Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), are the most likely to present themselves to you. (As we go to “press,” Congress is already taking aim at eliminating both DACA and DAPA. I will have more to say about the effects of the President’s 2014 Executive Action regarding employment-based immigration in a future blog entry.)
Long-term hotel and restaurant employees may appear to be more affected by DACA and DAPA than in many other industries. This may be because these individuals have had little opportunity or motive to move from job to job, even in the highly mobile service industry, because of concern that Form I-9 procedures could result in a new employer’s discovery of the lack of official documentation or employment authorization. For many affected by DACA and DAPA, job security has been more important than mobility.
Should I discipline the employee? Am I required to discipline the employee?
What if you become aware of the fact that the SSN you have previously associated with this employee was not that person’s legally assigned SSN? This would certainly be the case for a DACA or DAPA set of facts. This could be considered falsification of business records or a violation of a company’s “honesty in the business” policies.
As a business, you have a couple of choices, based your policy/ies, collective bargaining agreement (if the employee is represented by a union), and/or history of action in similar circumstances. You must be sure that, whatever you do, it does not result in disparate treatment involving any legally or contractually protected status. Make sure that proper protocols are followed for any investigation or action taken. If the employee is represented by a union, proper protocols should include reviewing the discipline-related articles of the collective bargaining agreement to ensure compliance, and providing representation for the employee if requested and required.
Assuming it is determined that the employee had purposely provided false information, taking disciplinary up to and including dismissal may be appropriate, considering other cases with that employer, the employer’s policy regarding honesty in the business, collective bargaining agreements, and status in any protected class.
Many employers confronted with DACA or DAPA cases are unwilling to dismiss a valued worker in this situation. Taking disciplinary action, or taking no disciplinary action, is not mandated by the government. However, you should be sure that whatever choice is made, it is not illegally discriminatory or in violation of a collective bargaining agreement.
How do I comply with Form I-9 Requirements?
The underlying basis of the presentation of a new SSN, or an EAD (which is likely to be accompanied by reference to a new SSN) may be of no real interest to you. Assuming you decide to continue her employment, your focus should be on what to do with the new information, which involves the Employment Eligibility Verification form; the Form I-9.
Assuming she was hired after November 6, 1986, when the Form I-9 came into existence, and the employer has a Form I-9 for her, you need to fully verify her employment authorization. This may allow an opportunity to run this new information through E-Verify if you are registered.
The government has prepared a helpful resource document related to DACA cases, but which is also applicable to DAPA cases and cases in which you have been advised that a new SSN has been issued. You will see that the focus is clearly on the objective information presented, not the mystery behind it.
Your focus is on having a properly completed Form I-9 on file.
If the information presented presents a change to any of the information in Section 1 of the previously completed Form I-9, such as name, date of birth, attestation, or SSN (which is not always required in Section 1), she and you should complete a new Form I-9, using the original date of hire, and attaching it to the previously completed Form I-9. This applies in either situation, in which only an SSN change has been reported or an EAD has been presented. Of course, as a part of this process, you must examine and record information from the original document(s) presented to complete Section 2 and, if your policy is to always copy documents presented, to do so. Employers who participate in E-Verify should verify the new Form I-9 information through E-Verify.
If the information presented requires no change to any information in Section 1 of the previously completed Form I-9, such as if no SSN had been noted and no attestation change is required, you may complete Section 3 of the previously completed Form I-9 if the version used for the previous verification is still valid for use as of the current date. If Section 3 of the previously completed Form I-9 has already been completed, or if the previously completed Form I-9 is not currently valid for use, you should complete Section 3 of a new Form I-9, being sure to write the employee’s name at the top of Section 2. Attach any newly completed Form I-9 to the previously completed Form I-9. This situation does not require or authorize a new E-Verify check.
In all cases, be sure to examine the original documentation. You must certify that you have done so, and that the documentation appears to be genuine and relates to the employee presenting it.
The employee may choose which documents to present, either List A, or List B and List C. In only very limited circumstances may you legally suggest to the employee what documentation to present for Form I-9 purposes. Rather, provide the employee with the List of Acceptable Documents included with the Form I-9 and let the employee choose what to present to you. An employee who has a “new” SSN may choose to present an EAD as a List A document and is not necessarily required to present an SSN card as a List C document.
- In all cases, be sure to record the document title, document number, and its expiration date (if any).
- In all cases, be sure to sign and date the Form I-9 in the appropriate space.
- Remember to reverify the employee’s documentation by the date the validity period of a List A document expires, except for passports or Lawful Permanent Resident cards. Never reverify List B documents.
I also suggest that you consider preparing a memo to the file, also to be clipped to the Form I-9, explaining what happened and when, signing and dating that. This will allow an auditor to consider this, potentially years from now when none of the parties may be available to explain it, to understand exactly why this action took place.
Forms I-9 and related attachments must be retained for at least three years after the date of hire or one year after the date the individual’s employment is terminated, whichever is later.
What to do?
It is important to recognize that an employee’s presentation of the kind of information referenced here is a very serious matter in that employee’s life. Emotions can be high for that employee, co-workers, representatives, and yes, even you. Like anything you do in your job, planning for your response to a situation like this, and responding in a manner that can be seen as fair and reasonable can go a long way toward maintaining good employee relations and legal compliance.
By now, most hoteliers and restaurateurs know that all employers are required to prepare and maintain the Form I-9 for all of their employees. But did you realize that those forms can be a basis for financial liability if they were improperly prepared? This post will identify your risks and strategies to reduce a fine if you are ever audited by the government.
Legal Employment/Improperly Completed Form
You can be fined even if all of your employees are legally authorized to work. The government can fine an employer between $110 and $1,100 for first-time violations for each improperly completed Form. Fines go up for violations identified in a subsequent government audit.
Important Lesson: Train the personnel who are responsible for Form I-9 compliance so they know how to properly complete a Form I-9 before it gets put into your filing cabinet. The government’s webinars are a good place to start training, but you might consider in-person training by your regular labor and employment law advisor or one of the GSB Labor and Employment Team Members.
Illegal Employment/Properly Completed or Nonexistent Form
It happens. Either fake documents are presented without you realizing it, or worse, someone in your organization knowingly hired someone who had no legal authority to work. A government audit will identify both situations, but you will likely be fined in the second situation only, between $375 and $3,200 for each unauthorized employee for a first audit. You might not be fined at all if you did everything correctly.
Important Lesson: Make sure that personnel responsible for Form I-9 compliance know which document can be used and that they understand their responsibilities, including:
- The document presented relates to person presented
- The document appears to be genuine
- Do not entrust Form I-9 compliance to just one person
- Link payroll to Form I-9 compliance as a double-check to be sure that all personnel on the payroll have properly completed forms; don’t add anyone to payroll unless it’s been confirmed that a properly completed Form I-9 exists.
No matter how good your protocols are, you will invariably find mistakes. An annual internal audit, by a fully-trained person or team, can identify errors and trends, many of which can be corrected to reduce or eliminate liability.
Great Policy/Lack of Follow-Through
Mistakes, changes in personnel, and lack of training are just some reasons even the best of policies can’t protect you from liability. And if you don’t regularly conduct your own internal audits and take action to fix things, your cabinet will still have liability.
- Include regular (preferably annual) internal audits of the Forms I-9 prepared in the previous year.
- Follow the government protocol to “correct” the mistakes on documents that you can, and memorialize why you can’t for the others.
No employer does it all right. Mistakes happen and rogue employees exist. But by facing up to these realities and proactively addressing them, you can reduce and possibly even eliminate liability for the Forms I-9 you are required to complete and retain.
Now that the election is over and we know who’s running the country for the next few years, is it too much to think that we might get some kind of comprehensive immigration reform? It seems that the time is right for a big change. Presidents Bush and Obama were not successful in getting Congress to take action. President Obama recently instituted some controversial but popular reforms on his own without waiting for Congress. The fact that those actions may have helped him get re-elected has not gone unnoticed by Congressional representatives, who are likely to take action. But the question is when.
The federal government does not move at the speed of business. So it’s important to plan based on current law, not on what might get through Congress next year or even later. The legislative process can take months, and laws enacted won’t go into effect until even later, after regulations have been drafted and vetted. It’s important to understand your current options and the timelines associated with them while you urge Congress to fix the broken immigration system in the future.
Here are some ideas about options the hospitality industry can expect to have available for 2013. The letter and number designations in the sections below are the government’s codes for particular employment-based classifications.
TN Status: Canadians and Mexicans in some professions can get employment authorization quickly
The North American Free Trade Agreement (NAFTA) provides options for quick (often approved on-the-spot in less than an hour), inexpensive (as little as $50 in government fees), and long-lasting employment (up to three years at a time) of citizens of Canada or Mexico. The candidate must satisfy the minimally-described educational requirements for a limited group of professions, such as accountant, computer systems analyst and hotel manager. Management consultants are also possible, but don’t call someone a consultant just because there isn’t a NAFTA profession for the service you need. For more information, see link.
Some employers don’t take the Form I-9 seriously, but they should. The government has significantly increased its audits of all kinds of employers – not just the bad guys - and are assessing hefty fines for mere technical violations. This is particularly true in the hospitality industry, which can be a target for audits and which, because of employee turnover, has seen disproportionately high fines.
Every employer knows that the government’s one-page form, the “Form I-9, Employment Eligibility Verification,” must be completed for every new employee. And most make sure that they get theirs completed in a timely manner. But failure to be vigilant regarding the timelines or whether the forms are completed fully or correctly can cost even the best employer thousands of dollars in fines.
Most employers consider themselves good guys. They don’t purposely seek out or hire employees who are not authorized to be employed in the U.S. But those employers are mistaken if they think that Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security, only audits unscrupulous employers. ICE does focus on certain industries in which there is a history of unauthorized employment, but the reality is that ICE has become very good at conducting audits, and has a team of forensic auditors on staff that it wants to keep busy. ICE does that by initiating seemingly random individual audits or nationwide actions in which up to 1,000 audits are served in a single day, providing as little as three days’ notice before documents have to be surrendered. The writing is on the wall – employers should plan for and expect a government audit of its Form I-9 documentation.
Greg Duff, Editor
Greg Duff founded and chairs GSB’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.