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Reports submitted to the U.S. government that include both names and Social Security numbers (SSNs), such as 1095 and W-2 forms, are filtered through U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS). In some cases, employers will receive a No-Match Letter or an Employer Correction Request from the Social Security Administration (SSA) for certain employees. ICE will send a similar letter (the Notice of Suspect Documents) after inspection of files during an I-9 audit when discrepancies are noted.

A mismatch should not be used to take adverse action against an employee, as it may violate state or federal law. It is, however, incumbent on employers who receive such notices to investigate, remediate, and communicate identified errors within established timelines. ICE’s “safe-harbor” procedures include the process employers should follow to resolve questions of worker identity and eligibility to work. These steps, if followed, can eliminate the possibility that a no-match letter can be used as part of an allegation that an employer had constructive knowledge that unauthorized workers were employed in its workforce.

An employer who knowingly ignores facts and circumstances that would lead a person, through the exercise of reasonable care, to determine worker eligibility may incur penalties of $216 to $2,156 per employee, with additional aggregate fines up to an additional 25 percent.

“Actual” knowledge means that an employer willfully employed a worker knowing that the person was ineligible to work.

“Constructive knowledge” occurs when an employer fails to attempt to resolve no-match situations through inquires, or to take appropriate action within a reasonable time. An employer may also be found liable for constructive knowledge if it ignored indicators that called employment eligibility into question.

The following actions should be taken upon receipt of a no-match letter.

Step 1: Review Records

Employers should check their records to determine if the discrepancy is a clerical error, such as typographical and transcription errors and name changes due to marriage. If this is the case, the employer should:

  • Correct its records. All changes to Section 1 of the I-9 form must be completed by the employee, by drawing a line through the incorrect information and writing in the accurate data. If the employee is no longer employed, no correction may be made. An employer can update Section 2 of the I-9. Documents used to verify eligibility to work in the U.S. and identity must meet acceptable requirements of the form in effect when the I-9 was initially completed.
  • The employer should verify that the updated information matches government records. A free verification service that confirms names and SSNs is available through the Social Security Administration’s Business Services Online.
  • Once verified, the employer should draft a memo that details the manner, date, and time of the verification and attach a signed copy to the employee’s I-9 as well as notify the respective agency of those changes.

ICE’s safe harbor provisions allow the employer 30 days from the receipt of the letter to resolve questions.

Step 2: Require Employees Identified in No-Match Letter to Confirm Information

If the employer is not able to resolve issues identified by the respective agency, it should promptly request that the employee confirm that the employer’s records are correct. A sample employee communication is available at www.ssa.gov/employer/sampleltr.doc.

  • If the employer’s records are not correct, it should (in accordance with the agency letter’s instructions) verify the corrected records if new documents are presented, and report the changes to the agency.
  • The employer should also correct its records. An employer may use Section 3 of Form I-9, or, if Section 3 has already been used for a previous reverification or update, it may complete a new Form I-9. Minimally, page two of the original I-9 should be maintained in addition to the new I-9.
  • If the employee responds that the records are correct, the employee should be instructed to pursue the matter personally with the SSA and notify the employer of any changes.

Once again, the safe harbor provisions allow the employer 30 days from the receipt of the letter to resolve discrepancies.

A discrepancy will be considered resolved only if the employer can subsequently verify with SSA that the SSN and name match or with DHS that documents used to verify eligibility are valid.

In the event the requirements of the no-match letter are not met, download UBA’s free Compliance Advisor, “Employment Eligibility: How to Handle Questions about Worker Identity” for information on two courses of action available to employers.

Originally published by www.ubabenefits.com

Since the current version of the Form I-9, Employment Eligibility Verification, expired on March 31, 2016, employers have been awaiting a new, updated form. On August 25, 2016, the federal Office of Management and Budget (OMB) approved a revised Form I-9. Consequently, the U.S. Citizenship and Immigration Services (USCIS) has 90 days to update the form and must publish a revised form by November 22, 2016. According to the OMB Notice of Action, this new Form I-9 will expire on August 31, 2019 — a three-year validation period similar to previous validation periods. In the meantime, employers may continue using the current version of Form I-9 (with a revision date of 03/08/2013 N) until January 21, 2017. After January 21, 2017, all previous versions of Form I-9 will be invalid.

Changes to the Form

Many of the Form I-9 changes were designed to help with completing the form and assist in reducing technical errors. For instance, new smart error-checking features have been added when the form is completed using an Adobe PDF viewer or application. Some other new features include:

  • Addition of a supplement where more than one preparer or translator is used to complete Section 1 (translator certification where an employee must check that he or she did or did not use a preparer or translator in completing the form).
  • Controls within the form for users to electronically access the instructions, print the form, and clear the form.
  • Drop-down calendars and lists.
  • Embedded instructions for completing each field.
  • Provision of additional spaces to enter multiple preparers and translators.
  • Quick-response matrix barcode (QR code) that generates once the form is printed and may be used to streamline audit processes.
  • Rather than all other names used, only requiring employees to provide other last names used in Section 1.
  • Removing the requirement that aliens authorized to work provide both foreign passport information and Form I-94 in Section 1 after attestation of such status.
  • Separating instructions from the form.
  • Specific area to enter additional information that employers are currently required to notate in the form’s margins.
  • Validations on certain fields to ensure information is entered correctly.

The new Form I-9 instructions also provide revised abbreviations for use on the form. Employers should use these abbreviations although longer, commonly used abbreviations may still be acceptable. For example, “Permanent Resident Card” is now “Perm. Resident Card (Form I-551).”

Related Rulemaking

Also important, the federal Office of Special Counsel (OSC) has proposed to revise regulations implementing a section of the Immigration and Nationality Act concerning unfair immigration-related employment practices. In these revised regulations, the OSC proposes a new definition of discrimination along with a revision to the language related to unfair documentary practices. The proposed definition clarifies that discrimination is the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility, to include the process related to completing the Form I-9.

There is also a proposed unfair documentary practices portion to prohibit unfair immigration-related employment practices. It would replace the current document abuse provision, which prohibits requiring more or different documents than presented if the employee presented documents from the list of acceptable documents. This also goes to an employer’s rejection of employee-completed Section 1 — which may be considered a discriminatory employment practice.

Currently, the USCIS provides this guidance in the prevention of discrimination in the Form I-9 process.

What to Do

As a response to the many pending changes to the Form I-9 and related laws, the next step for employers is to review current policies and procedures. For instance, employers will still be permitted to print and complete the new Form I-9 by hand, but that may not be a permanent option. In fact, employers and employees may elect to fill out any or all sections of the form by computer, by hand (printed), or a combination of both.

ThinkHR will keep you informed as more information is released. The USCIS suggests that employers visit I-9 Central and subscribe to GovDelivery to ensure receipt of the latest news on the revised Form I-9.

Originally published by www.thinkhr.com

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