Ask the Experts: I-9, W-9, E-Verify and more!

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Ask the Experts: I-9, W-9, E-Verify and more!

Published about about 2 years ago

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These questions and answers are excerpts from our webinar on 6/9/15, “Avoid ICE knocking on Your Door: I-9 E-Verify and Immigration Compliance,” which was presented by Julie Pace of the Cavanagh Law Firm. You can watch the entire webinar these questions and answers came from HERE. Q: “If we complete an audit and realize that we have blank spots that the employee did not complete with an “n/a,” should we leave it or go back to the employee to write the n/a in the box?” Julie: “Avoid blank spaces and put a dash to show it was not skipped. I would avoid ‘N/A.’ Use a dash instead. A dash does not disrupt the scans and it shows you thought about it, it wasn’t available, and that’s how you thought it out.” Q: “If someone puts in their birth date into the current date area and crosses it out, should they initial or just fill out a new form?” Julie: “Let’s look at section 1 of the I-9 Form. Let’s say the person wrote their birth date wrong or wrote it backwards. You have to do it in a certain format of (mm/dd/yyyy). Let’s say you’re proofing it and they did it backwards. They can actually strike through with a straight line, you can have the employee do that. So, a single strike through so it’s legible the agents can read it and they don’t see anything covered up. Then write the new date below it and then date it, and initial it. And if you correct I-9’s after the person has worked there, that would be something to have the employee sign, initial, and date it in that same little box to show when they altered it. If it’s a new hire, you just start over – you can shred the first one and move on from it.” Q: “Could you please explain why it is important for a new employee to complete a W-9 along with a W-4?” Julie: “Employers cannot specify which documents employees use. Employees may choose not to show you a Social Security card. As an employer, we want to have something to verify what we’re relying on for their Social Security number. The W-9 really helps to show good faith in immigration compliance and it also helps you with the IRS. If you end up paying someone who’s not in our workforce, and it turns out that is not their Social Security number, it goes into the unapplied earnings, then the IRS can target companies for penalties over that financially. They can’t really do that if you have a W-9 signed. It’s a very easy form to get signed with the W-4, right at the time you’re hiring people and they just sign it as an individual. They cannot put a Taxpayer ID number on there because the IRS does give people who are undocumented a (TIN) so they can file their taxes, but they can’t do that to work for you, they must put their Social Security Number.” Q: “If they are presenting a list A document for the I-9, why would we require a W-9?” Julie: “Because the I-9 Form is solely for the federal government and it’s only their form. It cannot be given to contractors, or companies that say, ‘Show me your I-9 to do business with me,’ or to state law enforcement, state employment agencies, who all make these mistakes. The W-9 is designed for the IRS, for law enforcement inquiries, and also we use it with ICE that we are showing good faith and that we are paying underthe correct Social Security Number, since Social Security numbers are the most abused out there. And we do not necessarily want a copy of the Social Security card, because they’re counterfeited enough to where an agent would say, ‘Hey, you should have known this was counterfeited. Now that you have a photocopy of that document, we’re going to target you for it.’ The W-9 is a very effective tool for when a police officer comes by and says, ‘Hey, I need some documents to show for identity theft.’ Your response can be, ‘I can’t give you an I-9 form, but I can give you a W-9 and a W-4 that were signed, and we’ll move on.’ ” Q: “Can't you use the Social Security Database check to help with verification?” Julie: “I would not recommend that. That used to be an old program, the SSNDS, it’s kind of fraught with problems, first of all. The government views it that the Social Security card and number is not an immigration document. So, if it comes back that it doesn’t match, there’s 17.1% of people who don’t match their name and social; they’re still perfectly legal to work. The problem is you get into a bind where you are getting information from the Social Security database that says it doesn’t match and then what do you do with it? Now you’re starting to go down that path of constructive knowledge by ICE that says, ok, you took the extra step to check that database and now that you’ve checked it, now we think you should have know or done something further about it. And yet, you’re not allowed to fire them and theirs case law that says if you do, you can be targeted for back wages and damages because it is not an immigration database.” Q: “What do we do with the W-9 besides just having it?” Julie: “Just put it in your regular personnel files. You’re not allowed to put I-9 forms with your personnel files, but you’re absolutely allowed to put W-9’s with your personnel files, so that’s the easiest way.” Q: “What if my state doesn’t have a driver’s license issuing authority?” Julie: “In some states, driver’s licenses don’t have an issuing authority, and you just have to look at the card and it will show. For example, the state of Arizona doesn’t have one, but if you look at the card and it says Arizona, you can put ‘State of Arizona’ or ‘AZ DL’ and that’s fine.” Q: “Is it ok for the employer to type up the I-9 and have the employee review and sign or MUST the employee fill the form out?” Julie: “We used to do that in the old days, but I wouldn’t today. I know it’s faster, but if you’re in a high risk industry, I wouldn’t do it. I’d let the employee do it in their own handwriting, especially if you’re in a high risk industry.  Until we get a legal status program through congress, and get some immigration reform done, police officers and ICE agents may target  the HR person and say the manager was helping them in making up the information, so they could get the worker. We want it in their own handwriting so they can’t target you.” Q: “Is it okay to have the new hire fill out the I-9 prior to the first scheduled day of work?” Julie: “Yes, you may do that. That helps a lot, because they can fill it out, the date they start is later, and you’re getting all of your ducks in a row ahead of time. So no problem about that, a lot of people do that, good choice.” Q: “Should you have employees fill out new I-9s periodically or should they only be completed at time of hire?” Julie: “You’re prohibited, generally from having I-9’s completed after someone starts, unless you’re doing an audit and you see a mistake, and you realize something needs to be done. It’s supposed to be done once at the time of hire and not looked at, unless you’re doing an internal audit.” Q: “We have seasonal employees that only work in the summer. Do I need to re-verify if they are classified as seasonal employees?” Julie: “If someone’s rehired within three years after the original I-9 is completed: employers may complete Section 3 of the original Form I-9 after verifying that Section 1 information is still accurate. If it’s more than three years after the I-9, you just complete a new I-9. If you previously completed section 3, you can complete a new I-9. And some people just do I-9’s everytime an employee comes in, so keep that in mind as well.” Q: “Can you fire someone if they give you false documents?” Julie: “Sure, if you find out that someone is not legal to work, you absolutely can let them go. You just say, ‘We do things by the book, we’re immigration compliant, we’re sorry, that’s the way it is and we’re going to have to separate your employment.’ ” Q: “If you’ve always retained photocopies of documents, should you get rid of those?” Julie: “If you’re not under a government audit now, you can audit your I-9’s get them up to speed and follow your retention rules and do that as of today.” Q: “Do you have to sign up for E-verify?” Julie: “In some states, we do a lot of federal government contract work. So for Davis-Bacon and contractors, you do have to sign up for E-verify for federal contract work. So, there’s some states where it’s required and some states, it’s voluntary. You can watch the entire webinar these questions and answers came from HERE. Find out more about our Employment Verification Guide, authored by Julie Pace, HERE. It focuses in depth on I-9, E-Verify and Immigration compliance.