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USA Operations Centers Immigration – Form I-9 Administration May 2017
As this policy is reviewed, please note the following State/areas for which exceptions exist:
West Virginia
California
Please note that effective August 10, 2016, Colorado repealed its requirement to collect an “Affirmation of Legal Work Status” form; however Colorado retained the authority to audit employers for I-9 compliance. Colorado forms collected prior to August 10, 2016 should be retained until 1 year after the employee’s employment ends or 3 years after the date of hire, whichever is later.
Specific details on each exception may be found within the General Information section of this text.
This policy reviews the employment process pursuant to the Immigration Reform and Control Act of 1986 (IRCA) as amended in 1990, and the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA). THESE FEDERAL LAWS REQUIRE U.S. EMPLOYERS TO VERIFY THE IDENTITY AND EMPLOYMENT ELIGIBILITY OF EACH U.S. CITIZEN AND NON-U.S. CITIZEN HIRED AS AN EMPLOYEE. THIS VERIFICATION IS ACCOMPLISHED BY REQUIRING EMPLOYERS TO COMPLETE THE U.S. DEPARMENT OF HOMELAND SECURITY – FORM I-9 EMPLOYMENT ELIGIBILITY VERIFICATION FOR EACH NEW EMPLOYEE.
Immigration and the Form I-9 are regulated by the U.S. Citizenship and Immigration Services (USCIS), formerly Immigration and Naturalization Services (INS).
Joyner partners with a Third Party Administrator, HireRight, to implement an electronic Form I-9 process. The Human Resources (HR) Department is responsible for managing and administering Joyners’s compliance with IIRIRA. Such administration is accomplished by a team within the Human Resources & Employee Care (HREC) in partnership with hiring managers or a delegate.
The HREC will invite the new employee to electronically complete Section1 of Form I-9. Once completed, the hiring manager will receive a system-generated email requesting them to complete Section 2 within 3 business days after the employee’s start date. The hiring manager (or delegate) must review Acceptable Documents face to face with the employee, photocopy the documents if applicable, review Section 1, complete Section 2, and electronically sign Form I-9.
The hiring manager email notification contains log-in details to access the HireRight system, as well as instructions on how to assign a delegate, detailed photocopy requirements, and customer support information for questions or technical difficulties.
Background Federal law requires employers to:
Verify the identity and employment authorization for any employee (any U.S. citizen and non-U.S. citizen) hired or rehired after November 6, 1986.
Complete the U.S. Department of Homeland Security – Form I-9 Employment Eligibility Verification.
Update and Re-Verify Form I-9s for Employment Eligibility of non-U.S. citizens.
E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.
E-Verify is closely linked to Form I-9, Employment Eligibility Verification, and exists to strengthen the Form I-9 employment eligibility verification process that all employers, by law, must follow. While participation in E-Verify is voluntary for most employers, participation in E-Verify is required at Joyner in support of the electronic Form I-9 process.
Specific photocopy requirements for Acceptable Documents presented by the employee exist for the following states:
West Virginia
Photocopy requirements also exist for the E-Verify Photo Matching Tool.
The “West Virginia law, § 21-1B-3 (2011)” requires Joyner to document the proof of each employee’s legal status. Accordingly, Joyner will photocopy each newly hired or rehired employee’s Acceptable Documents in West Virginia.
Fax the photocopied documents to the HREC or by email.
Anti-Discrimination Notice It is illegal to discriminate against any individual in hiring, discharging, or recruiting because of that individual's national origin or citizenship status. It is also illegal to discriminate against any individual having U.S. employment authorization. An employer cannot specify which Form I-9 Acceptable Documents (establishing identity and employment authorization) the employer will accept from a new employee. The refusal to hire an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.
Work Visas There are two categories of immigration in the United States: (1) temporary resident non-immigrants and (2) permanent resident immigrants. Non-immigrant visas are temporary in nature, allowing the holder to enter the United States for a limited period of time. Immigrant visas provide permanent residency and employment rights.
Visas may be requested for a variety of reasons, including residency, travel, employment, and education.
(Note: In most cases, entry level positions at Joyner do not meet the federal eligibility requirements for employer-sponsored work visas.)
In order to work in the United States, an individual must have U.S. employment authorization, which can take the form of a work visa for those who do not have permanent employment authorization through permanent residency (Green Card) or U.S. Citizenship.
Employer-sponsored work visas require the petition and support ("sponsorship") of an employer. Such visas are usually limited to specific occupations and/or have stringent eligibility requirements.
In situations where the job and the applicant meet federal requirements for an employer sponsored work visa, and where management desires to sponsor and hire the applicant or to sponsor the renewal of the current employee’s visa, HREC will assist the business area Management in preparing a business case for Department Head approval. HR will forward the business case to Legal Services (Immigration) for preparation and filing of the sponsorship Application with USCIS.
There are several types of non-immigrant visas. Joyner HR Authorized Associates are most likely to receive questions about the following:
An H-1B can only be obtained through a sponsoring employer. To qualify, the worker must have a confirmed job offer for a position that meets the H-1B specialty occupation eligibility requirements. A "specialty occupation" is defined as one that requires, at a minimum, the attainment of a bachelor's degree and the theoretical and practical application of a highly specialized body of knowledge. This requirement can be met by showing that the nature of the specific job duties are so complex or unique that they can be performed only by an individual with the required degree, or that the employer normally requires a specific degree or its equivalent for the position. Examples may include positions such as attorney, accountant, engineer, etc.
Employers seeking an H-1B Visa must also prove that the job meets certain wage and labor condition requirements. The employer must post a conspicuous notice in the workplace on or within 30 days before the date the labor condition application is filed. The notice must remain posted for a total of 10 days.
H-1B visas are approved for an initial period of up to 3 years. Extensions are available but the total period, including extensions, cannot exceed 6 years.
Joyner positions such as interns, Service Center / Team Member Company Driver, most first line supervisor positions, and any opening for which a specific degree is not normally required do not meet the eligibility requirements for the H-1B visa.
Applicants inquiring about employer sponsorship for these positions should be advised that, because they do not meet the qualifications for a specialty occupation, Joyner will neither submit nor support an H-1B visa application.
TN Visa The TN Visa is available to citizens of Mexico and Canada who are seeking temporary work authorization in the U.S. under the North American Free Trade Agreement (NAFTA), and who are considered professionals as defined by NAFTA and the USCIS. To qualify, the worker must be employed in a professional position that requires, at a minimum, a bachelor's degree or appropriate credentials demonstrating status as a professional. Examples of qualified professions include accountant, engineer, systems analyst, etc.
The TN Visa requires supporting documentation from the employer. It can be issued for up to three years and may be extended multiple times.
L-1 Visa L-1 Visa is not available to Joyner as there is no company outside the U.S. to transfer employees.
F-1 Student Visa Non-U.S. citizens interested in attending school in the United States may apply for an F-1 Student Visa. This is a temporary visa for applicants who plan to pursue a full-time academic program at an approved educational institution. The visa is usually granted for a period covering the time they are pursuing full-time study, plus time for practical training. There is also a brief period (approximately 60 days) for the student to prepare for return to the student’s home country.
In most cases, students on an F-1 Visa are not authorized to work in the United States. Applicants must prove they have adequate financial resources to support themselves while in school without having to work.
However, two forms of temporary work authorization are available for students who want to apply their education in a work environment. The purpose is to give students hands-on experience in their field of study to prepare them for employment upon return to their home country. These options are:
Curricular Practical Training (CPT) - Curricular Practical Training (CPT) is defined as alternative work study, internship, cooperative education or any other type of required internship or practicum that is offered by employers through cooperative agreements with a college or university. The student must be attending school full time and meet other CPT criteria. Generally, the student may not work more than 20 hours per week while school is in session. During school breaks (summer, holiday breaks, etc.) they may work full time.
Optional Practical Training (OPT) - Optional Practical Training (OPT) is defined as temporary employment for practical training directly related to the student's major area of study. A student may participate in OPT both before and after completing their course of study. However, the work authorization period is limited to 12 months and must be finished within 14 months after graduation.
Students with OPT or CPT work authorization may be very competitive for short term positions such as internships, summer or seasonal employment, and openings with specific start and end dates. A cooperative agreement with the college or university may be required for students with CPT work authorization.
Since both OPT and CPT are restricted to temporary employment (training or positions not intended to be long term in nature), candidates with F-1 OPT and CPT work authorization will probably not be competitive for positions for which there is no anticipated start and end date. Exceptions may apply for OPT, if the position is one for which management is able and willing to support an employer sponsored work visa once the OPT expires.
Candidates with OPT who inquire about regular full-time positions should be advised that, if the positions are intended to be long-term in nature and are not eligible for work visa sponsorship, they will not be competitive. If the applicant inquires about employer sponsored work authorization, such as an H-1B visa, and the job is not eligible or management is not willing to support sponsorship, Human Resources should clearly communicate to the applicant that sponsorship is not an option.
The work authorization question on the employment application should help Human Resources determine if an applicant is restricted to practical training (OPT or CPT). However, in some situations Human Resources may not be aware of the restricted employment until the first day of work when the new employee presents Form I-9 Acceptable Documents. In these situations, the CPT or OPT employee should be made aware that the employee will be required to demonstrate continued work authorization after the expiration of the employee’s CPT or OPT. If the employee’s CPT or OPT expires and the employee becomes ineligible to work in the United States, such employee’s employment must be immediately terminated. If the applicant inquires about employer sponsored work authorization and the job is not eligible or management is not willing to support sponsorship, Human Resources should clearly communicate to the applicant that sponsorship is not an option. If the position requires extensive training expense (such as licensing courses), Human Resource & Employee Care (HREC) should be contacted for guidance.
Effective May 10, 2016, a student on an F1 visa with a STEM (Science, Technology, Engineering or Mathematics) degree may be eligible for 24 months’ additional work authorization beyond the initial 12 months under the OPT program. If a department desires to sponsor an employee under the “STEM OPT program, an I-983 form needs to be submitted by the student to their Designated School Official and the Joyner business area will need to develop a training plan for the individual. Please note Joyner is not required to participate in this program.
Permanent Residency - Permanent Resident Card (“Green Card”) A Permanent Resident Card, commonly known as a "Green Card," evidences that the U.S. government has granted permanent residence and employment authorization to the holder. Employers are neither required nor permitted to re-verify employment authorization of employees who have presented unexpired Green Cards. NOTE: Expired Green Cards may not be used to satisfy Form I-9 requirements for new employment.
Permanent Residency Reimbursement Agreement In the event that Joyner pursues sponsorship of permanent residency for an employee, the employee will be required to sign the Permanent Residency Agreement. This agreement states that if the employee’s employment is terminated within five (5) years after the effective date of this signed agreement, he or she will be responsible for reimbursing Joyner for costs incurred by Joyner for sponsorship.
These reimbursement costs include legal fees, legal costs, and application filing costs paid or incurred by Joyner to sponsor the employee and the employee’s dependents for U.S. Permanent Residency.
Joyner shall provide the employee with a written statement that itemizes such fees and costs within thirty (30) days of the employee’s employment termination date.
This agreement contains a payment schedule (Schedule A) that allows for reduced percentage reimbursements based upon the number of years the employee worked between the effective date of the signed agreement and the employee’s termination date.
Human Resources and the employee should sign and date the agreement. A copy should be sent to the Legal Services (Immigration), and the original should be filed in the employee’s file.
The electronic Form I-9 process requires hiring managers (or delegate) to complete Section 2 of Form I-9. Once the new employee completes Section 1, the hiring manager is notified to complete Section 2. On the new employee’s Start Date, the hiring manager (or delegate) shall review Section 1 and complete Section 2 face to face with the employee using various resources including:
Invite Hiring Manager email notification
Hiring Manager Access and Completion Guide
Employee Onboarding Site
Reminder Memo to Hiring Manager
During Section 2 verification, the Hiring Manager (or delegate) must review and make photocopies of the supporting documents listed below and fax or email them to the HREC.
West Virginia: If an employee is hired into this state, you must make a clear photocopy of ALL supporting documents, and fax them to the HREC I-9 Unit.
E-Verify Photo Matching: If an employee in any state presents an I-551 (Permanent Resident Card), I-766 (Employment Authorization Card), a U.S. Passport or Passport Card document as the verification document, you are required to make a clear photocopy of the document and fax it to the HREC I-9 Unit.
Form I-9 Administration Administration questions about the Form I-9 or immigration issues should be directed to Human Resources & Employee Care (HREC), while legal questions should be directed to the Legal Services (Immigration).
Human Resources should advise all applicants that, if hired, Joyner is obligated by law to verify each new employee’s identity and work eligibility on the new employee’s Start Date. Human Resources may discuss this in the interview and at the time of the job offer.
Documents should not be requested or accepted prior to a new employee’s Start Date. However, Human Resources should ask the following interview questions of every employment applicant:
"Are you legally authorized to work in the United States?"
"Will you now or in the future require Joyner to file a petition or application for an employment-based visa status on your behalf to begin or continue employment with Joyner Transportation & Logistic Services?”
If the applicant responds to the first question by stating that the applicant is not eligible to work in the United States at present, and if no department has advised Human Resources of a department’s intent to sponsor the applicant, then Human Resources should inform the applicant that we will not consider the applicant further for employment. However, the applicant may re-apply for employment when or if the applicant obtains U.S. employment authorization in the future.
If an applicant says that he or she will require an employer sponsored work visa (such as H-1B or TN visa), Human Resources should respond appropriately, based on whether employer sponsorship is available for that position. See Work Visas for more information.
The HREC will initiate Form I-9 completion with the new employee and hiring manager prior to the employee’s Start Date. The HREC monitors and tracks Form I-9 completion from beginning to end and works with appropriate business areas when issues arise.
As a participating E-Verify Employer, Joyner is required to inform their current and prospective employees of their legal rights and protections. Joyner hiring locations are required to post the English and Spanish notices provided by the Department of Homeland Security indicating that Joyner participates in the program, as well as the Right to Work Poster issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices. These notices must be clearly displayed in plain view at your hiring site(s) to inform prospective and current employees that Joyner is participating in the E-Verify Employment Verification Program.
E-Verify Participation (English)
E-Verify Participation (Spanish)
Right to Work (English)
Right to Work (Spanish)
HR Authorized Associates will be responsible for responding to such audits. For states other than California, see the Job Aid for Joyner Human Resources Response Procedures for Form I-9 Government Audits.
To comply with California law, if an officer from Homeland Security Investigations, Immigration Customs Enforcement, or any U.S. Government agency comes to a California Joyner office and requests to view or obtain any employment documents or inspect Form I-9 of any Joyner employee. See the California Job Aid for Site Visits/Audits/Inspection by U.S. Immigration Officials.
U.S. Employees Working in Canada Joyner employees traveling to and performing work in Canada are required by Canadian Law to have a Canadian Work Permit. HR will assist the business area Management in preparing a business case for Department Head approval. HR will forward the business case to Legal Services (Immigration) for preparation and filing of the Work Permit Application with the Canadian Government. Legal Services via will, as needed, hire and retain outside counsel to complete and file the Work Permit Application on behalf of the employee and Joyner as the supporting employer. The legal costs and expenses will be incurred by the hiring department.
Employees traveling to Canada to attend a business conference or short business meeting will be provided with a B-1 Visa Waiver or “Border Letter” to present to Canadian immigration officials. Once Canadian travel is booked via the Joyner Business Travel Center, this initiates the border letter process. HREC will work with The Law Department to provide the border letter to the business traveler.
Effective September 30, 2016, Canada announced a new entry requirement known as an Electronic Travel Authorization (eTA). It will not impact U.S. citizens but will impact US permanent residents and foreign nationals who are traveling to Canada. Travelers who need to have an eTA should apply for one prior to booking flights to Canada as some applications may take several days to get approval.
State Exceptions
California
California law prohibits an employer from providing voluntary consent to an immigration enforcement agent to enter any non-public areas without a judicial warrant or to access, review or obtain employee records without a subpoena or judicial warrant.
California law also requires an employer to provide each current employee with notice of any inspections of I-9 Employment Eligibility Verification forms or other employment records by an immigration agency within 72 hours of receiving notice of the inspection. The employer must also provide affected employees with notice of inspection results within 72 hours of receiving written notice of results.
If an officer from Homeland Security Investigations, Immigration Customs Enforcement, or any U.S. Government agency comes to a California Joyner office and requests to view or obtain any employment documents or inspect Form I-9 of any Joyner employee, follow the procedures for California Job Aid for Site Visits/Audits/Inspection by U.S. Immigration Officials.