Beginning January 1, 2007, HB1017 Requires Additional Employment Verification for New Hires in Colorado

On July 31, 2006, Governor Owens signed HB 1017 into law. The law went into effect for any employees hired on or after January 1, 2007, but does not apply to existing employees.

HB 1017 requires all employers to affirm and document the legal work status verification, expanding upon the federal Immigration Reform and Control Act (IRCA) and its I-9 requirements. Employers are required, within twenty (20) days after hiring a new employee, to:

1. affirm the employer has examined the legal work status of the employee;

2. affirm it has retained copies of the documents it relied upon to complete the I-9;

3. affirm the employer has not altered or falsified the employee’s documents; and

4. affirm that it has not knowingly hired an unauthorized alien.

This new law also requires that the employer keep a written or electronic copy of the affirmation and all copies of the documents required under the IRCA for the term of employment for each employee. The affirmation and documents are not required to be submitted, instead employers must make the documentation available upon request by the Colorado Department of Labor and Employment. CDLE has a sample Affirmation Form that they suggest employers to use on their website, or you can download it at http://www.coworkforce.com/lab/AffirmationForm.pdf

Any employer, who with "reckless disregard," fails to submit documentation when requested or submits false or fraudulent documentation, shall be subject to a fine of not more than $5,000 for the first offense and not more than $25,000 for any subsequent offense.

See Also

• HB 06S-1017 (CRS §8-2-122)
  HB 06S-1-17 Link

Employers with PEOs Prepared for New Immigration Regulations

—PEOs Clarify Compliance Issues, Review Workplace Policies—

Employers could face a new wave of federal and state immigration laws once legislators reach agreement. Companies that work with professional employer organizations (PEOs) will be prepared for any new regulation that may emerge from the debate.

PEOs specialize in advising their business clients about how to practically comply with applicable state and federal employment regulations.  Small to mid-sized businesses cannot afford to ignore employment regulations, but they may not understand the ramifications until the government notifies them about a violation.  PEOs advise them about the regulations and how to comply.  That’s a powerful service that most businesses want and need.

The employment verification (I-9) process has special significance given the recent crackdown on illegal employment of unauthorized aliens by the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE).  The PEO verifies the employment eligibility and identity of all employees covered by its contract with a business.  The PEO assures that a Form I-9 has been completed for each employee and that I-9 records are properly maintained.

Business owners concerned about illegal workers want to work with PEOs to help ensure their records are clear, accurate and well maintained. They cannot afford a raid that could shut them down. 

PEOs also enable their business clients to cost-effectively outsource the management of human resources, employee benefits, payroll and workers’ compensation.  They provide the professional advice and proactive practices that improve a business’s compliance and create a better workplace.  While this support will not provide ironclad guarantees against errors and lawsuits, it will help to minimize the potential.

Solid human resources practices help a business minimize risk and create a positive working environment.   PEOs work with business owners to formulate and follow HR practices that comply with current laws on hiring, firing and disciplining employees. For example, a PEO can provide guidance with respect to structuring compensation so that it adheres to the state and federal wage and hour laws.  The PEO can also provide guidance on the rules and practices surrounding criminal and credit background checks, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act, COBRA, ERISA, and the complex rules for 401(k) plans, such as the safe-harbor and nondiscrimination-testing provisions.

For more information on StaffScapes, go to www.staffscapes.com.  StaffScapes is a member of the National Association of Professional Employer Organizations (NAPEO). 

Tips on what belongs in employee personnel files and what information should be kept seperate

An article released by BLR.com gives tips to employers on what information should be kept with in personnel file and the amount of time employers should retain certain documents.

Personnel Files should contain hiring information- applications and offer letters, pay changes, documents regarding performance and employment.

Medical records, garnishment orders, and I-9 forms should be kept in separate confidential files that are properly secured.  The article also suggests that all employers create a policy of recordkeeping and agree on what should be retained, where the files will be located, and the amount of time they will keep the documents.

To read more on personnel file tips visit www.BLR.com or call a StaffScapes representative at (303) 466-7864.

DHS announces final “No-Match”? letter requirements.

The Department of Homeland Security (DHS) has recently released its final regulations concerning employers’ responsibilities when a “No-Match” letter is received.  After an employer receives a “No-Match” letter from the SSA, or a letter regarding employment verification from the DHS, “reasonable steps” must be taken within 90 days of receipt or the employer may be found liable of violating federal immigration law. “Reasonable Steps” or “Safe Harbor” provisions that DHS recommends are:

·        The employer should promptly check its records to determine if typographical, transcription or clerical error was the cause.  If such an error did occur then the employer needs to correct its records, inform any relevant agencies, verify the corrected information with the relevant agency, and document the correction. This first step should be done within the first 30 days after receipt.

·        If above action does not correct the discrepancy, then the employer would need to promptly ask the employee to verify that the employer’s records are accurate. As above, if such an error did occur then the employer needs to correct its records, inform any relevant agencies, verify the corrected information with the relevant agency, and document the correction. If the records are accurate then the employer needs to have the employee address the problem with the relevant agency (i.e. visiting the local SSA office, bringing whatever acceptable documents are needed to correct the issue). This next step should also be done within the first 30 days after receipt.

·        If the discrepancy still exists, within 90 days of receipt of the letter, the employer must complete a new I-9 Form (using the same steps as if the employee was newly hired), except no documents may be used to verify the employee’s authorization that use the questionable Social Security number nor any document that does not have a photograph of the employee.

If all of the above verification steps fail then the employer must choose to either take action to terminate the employee, or be in violation of federal immigration law by knowingly continuing the employ of unauthorized persons.

For additional information please follow these links:        

See Also

• Safe Harbor Information Center
  ICE website with more detailed information regarding the new “No-Match” regulations
• Example of ICE insert
  Example of ICE’s insert that will be included with the SSA “No-Match” letters.

Documents that were once acceptable, are no longer allowed by I-9 updates

Though there is not an updated form of the I-9 since UMB no. 1615-0047, there is updated information on what documents are no longer acceptable to establish both identity and Employment Eligibility for the I-9.  The documents are categorized under List A and are as follows:

1. Certificate of U.S. Citizenship (Form N-560 or N-561)
2. Certificate of Naturalization (Form N-550 or N-570)
3. Form I-151 (Permanent Resident Card or Alien Registration Receipt Card with photograph)
4. Unexpired Reentry Permit (Form I-327)
5. Unexpired Refugee Travel Document (Form I-571)

USCIS is working on a new updated I-9 with an updated OMB no., until then employers can keep using the UMB no. 1615-0047 until the updated form is issued.

For more information about I-9 regulations, please visit www.uscis.gov

HB 2779, Arizona’s Fair and Legal Employment Act is set to begin January 1, 2008.

Arizona’s new state law that prohibits employers from intentionally or knowingly hiring unauthorized aliens becomes effective January 1, 2008.  After December 31, 2007, every employer will be required to verify the employment eligibility of the newly hired employee through the “E-Verify” program. E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA), and provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.

Violation of this new law may result in probation and suspension or revocation of all state licenses held by the employer based on the following conditions:

·                          For a first violation of an employer knowingly hiring an unauthorized alien, a mandatory three year probation will be imposed and may have all state licenses suspended for ten days.

·                          For a first violation of an employer intentionally hiring an unauthorized alien, a mandatory five year probation and minimum10 day license suspension will be imposed.

·                          For a second violation during a time of probation, the employer will have all of their state licenses permanently revoked.

The current political landscape and immigration issues will continue to place more responsibility on the employers, with ICE and DHS most likely increasing enforcement of federal I-9 requirements. Therefore, employers should audit all of their I-9 forms for existing employees, either internally or using legal counsel. We recommend that all employers use the next two months reviewing their hiring procedures to ensure that they are compliant with the current federal Immigration Reform and Control Act, including the Form I-9 requirements.

A copy of the act (HB 2779; Laws 2007, Chapter 279) may be downloaded at: www.azleg.gov

New Form I-9 mandatory for all employees hired on or after November 7, 2007.

U.S. Citizenship and Immigration Services (USCIS) has released a revised Form I-9, Employment Eligibility Verification. The form is available as a downloadable PDF on the USCIS website at www.uscis.gov.

USCIS has revised Form I-9 to bring it into compliance with the 1997 INS interim rule, which eliminated some of the documents that employers may accept from newly hired employees. The documents that have been changed are:

Five documents removed from List A:

·        Certificate of U.S. Citizenship (Form N-560 or N-561)

·        Certificate of Naturalization (Form N-550 or N-570)

·        Alien Registration Receipt Card (I-151)

·        Unexpired Reentry Permit (Form I-327)

·        Unexpired Refugee Travel Document (Form I-571)

One document added to List A:

·        Unexpired Employment Authorization Document (I-766)

All Employment Authorization Documents with photographs in circulation are now included as one item on List A:

·        I-688, I-688A, I-688B, I-766

The updated form should be completed exactly the same way the old one was. The only difference is the type of documents that employers may accept in Section 2. Employers may not accept documents that used to be on the I-9 form but aren’t now. Employers do not need to complete new forms for current employees that have already been verified. However, employers must use the 2007 Form I-9 when employees require re-verification.

As of November 7, 2007, the form I-9 with a revision date of June 5, 2007 is the only version of the form that is valid for use. However, DHS will give employers a period of time to transition to the updated form I-9. DHS will not seek penalties until 30 days after a notice regarding the updated form is published in the Federal Register. As of today, the notice has not yet been published in the Federal Register.

I-9 Verification Is Required of New PEO Co-EmployeesUnited States Citizenship and Immigration Service (USCIS) has reconfirmed its longstanding position that PEOs are responsible for conducting I-9 employment eligibility verifications of their new co-employees when taking on new clients.  While the employment arrangement with the client is a “continuing employment arrangement,” the employment by the PEO is a new hire and requires the PEO to complete an I-9.  In a letter to NAPEO, the agency reconfirmed the position taken by its predecessor agency (the INS) in 1999.   After the PEO relationship is established, employment eligibility for subsequent hires can be done under one single I-9 for both the PEO and the client.

The USCIS has issued a newly dated I-9 form to replace the one that expired on 6/30/08.

Go to http://www.uscis.gov/files/form/I-9.pdf to get a copy of the new form. Use this form for any employees hired on or after July 1, 2008. The new form will be valid through June 30, 2009.

See Also

• I-9 Form
  new form

What Do I need to know about Form I-9?

With a new Form I-9 issued, it is a good idea to review the purpose of it and the requirements as an employer.

The Form I-9 is used to help employers verify individuals who are authorized to work in the United States. A form should be completed for every employee that is hired. Employers are required to:

1.      Ensure that your employees fill out and sign Section 1 of the form when they start to work

2.      Review document(s) establishing each employee’s identity and eligibility to work

3.      Properly complete and sign Section 2 of the form

4.      Retain the Form I-9 for 3 years after the date the person begins work or 1 year after the person’s employment is terminated, whichever is later

5.      Upon request, provide Form I-9 to authorized officers of the Department of Homeland Security (DHS), the U.S. Department of Labor (DOL), or the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) for inspection.

Source: www.uscis.gov

New rules published regarding changes to the Form I-9, Employment Eligibility Verification.

A new interim rule for the Form I-9 has been released from the U.S. Citizenship and Immigration Services (USCIS).  The amended regulations modify the types of acceptable documents that employees may present to their employers for completion of the Form I-9.

Under the new rule, employees will no longer be able to present expired documents to verify employment authorization on the Form I-9. Under previous rules, a U.S. passport and all List B documents were acceptable for the Form I–9 even if they are expired.

The rule also adds a few additional documents to List A of the Form I-9, and makes other, technical changes to update the list of acceptable documents.  The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.   

The revised Form I-9 will need to be used beginning February 2, 2009.

652 businesses were recently served notices of immigration audits.

US Immigration and Customs Enforcement (ICE) has recently launched their new audit initiative issuing 652 Notices of Inspection. The notices explain that ICE will be inspecting the hiring records of these businesses including auditing I-9 form compliance. The businesses that have been presented a Notice were selected due to complaints and information provided by other investigations. ICE has stated that it is “focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly hiring illegal workers.” This new audit initiative has increased the amount of notices sent over last years 503.

See Also

• US Immigration and Customs Enforcement News Release
  652 businesses nationwide being served with audit notices today