I-9 Compliance Updates

I-9 Tip #4: Understand I-9 Regulations to Prevent Employment Discrimination

Vanessa Ridden — Mon, 07 Nov 2011 15:51:00 -0800

So far in this series of tips to avoid common I-9 mistakes, we’ve talked about the timeframe for completing the Form I-9, how long employers should retain I-9 records and when the reverification process should be performed. Next, we’re turning our attention to a topic that is equally as important: discrimination.

Tip #4: Understand the rules regarding employment discrimination.

The I-9 compliance process can be complicated, and it’s important to understand the rules in order to avoid costly fines and to maintain compliance. While it is important to follow the appropriate procedures and to verify employees, many employers make the mistake of being overly cautious to the point of discrimination. It’s important to remember that it is illegal to discriminate against any applicant based on their national origin, race, color, religion, age, sex, disability or genetic information.

An example of employment discrimination may be an employer who chooses to hire only American citizens. Unless U.S. citizenship is required for a specific position by law, regulation, executive order or federal, state or local government contract, jobs must not be limited only to U.S. Citizens.

Also, keeping copies of an employee’s documentation (showing that they are an alien authorized to work in the United States) can be a violation of anti-discrimination laws—unless you maintain the same documentation for all employees. Singling out any one person qualifies as discrimination.

There’s one more blog post coming up in this series, but if you’d like a handy resource including all five tips, feel free to download our complimentary guide today.

Now, we’d like to know: Do you feel that the regulations regarding employment discrimination are easy to understand?

I-9 Tip #3: Don’t Miss Deadlines--Create an I-9 Reverification System

Blake Forrester — Mon, 07 Nov 2011 15:42:00 -0800

Third in our series of tips to avoid common I-9 mistakes is some helpful advice about the reverification process. A lot of employers aren’t exactly sure when reverification must be completed, or which employees must be reverified.

Tip #3: Create a Reverification System.

It’s a good idea to establish a system that will remind you to reverify employees whose work authorizations are expiring—this must be done before the expiration date in order to maintain I-9 compliance.

An easy way to do this is to set up a tickler system that is organized by month. Sorting your employee records in this way can help you to stay on top of reverifications and to maintain compliance.

Remember, U.S. citizens and noncitizen nationals don’t ever need reverification. If an employee does require reverification, it must be completed no later than the date that the employee’s employment authorization (or employment authorization document) expires, whichever is sooner.

We’ve got two more blog posts coming up that will highlight common I-9 mistakes, but if you’d like to read all 5 tips now, you can download our free guide.

We’d like your feedback: What kind of system do you use to remind you about the reverification process?

I-9 Tip #2: Retain your I-9 records to avoid costly violations

Tanya Eislle — Mon, 07 Nov 2011 08:24:00 -0800

We’re continuing our series about common I-9 mistakes with a tip that focuses on record-keeping—specifically, how long employee I=9 forms should be retained. Managing employee documentation and I-9 forms is an important part of the compliance process, but many employers are confused about how long they should retain employee records and if it’s acceptable to discard records after an employee no longer works for the company.

Tip #2: Retain your I-9 records.

So how long are you required to maintain an employee’s I-9 form? The answer is: you must maintain an employee’s I-9 form either 3 years after the date of hire or one year after the date that employment is terminated—whichever is later.

It sounds simple enough, but failing to maintain records in this way can be a serious violation. According to the U.S. Citizenship and Immigration Services Handbook for Employers:

“If an employer’s action or inaction result in the alteration, loss, or erasure of electronic records, and the employer knew, or reasonably should have known, that the action or inaction could have that effect, the employers is in violation of section 274A(b)(3) of the INA (8 CFR Part 274a.2(g)(2)).”

Many employers simply opt to maintain all employee records on a permanent basis—that approach will work too, but it’s not a practical solution for everyone. Just make it a rule to follow the regulations put forward by the government in order to maintain compliance.

If you don’t want to wait for our next blog posts and would like to read all five of our helpful tips to avoid common I-9 mistakes, feel free to download our complimentary guide now!

We’re curious: Do you keep your employee records only as long as necessary, or do you retain them on a permanent basis?

I-9 Tip #1: Avoid costly violations--complete your I-9 paperwork on time

Blake Forrester — Wed, 02 Nov 2011 11:30:00 -0800

There’s no question about it—trying to maintain I-9 compliance and staying up-to-date on new rules and regulations can seem pretty overwhelming. Even the most seasoned staffing professionals will tell you that avoiding I-9 violations requires meticulous management of your hiring and record-keeping processes. So what are the most common I-9 mistakes?

We surveyed a group of prominent attorneys who serve in the fields of immigration and employment and asked that very question. In this post and in our next few blog posts, we’re going to take a look at the 5 most common I-9 mistakes made by employers and provide tips about how to avoid those mistakes. It should make for some interesting and informative reading, so be sure to subscribe if you haven’t already done so.

Tip #1: Follow the three-day rule.

Once you’ve hired an applicant, the Form I-9 must be completed within a specific timeframe. Try to remember the three-day rule when thinking about the I-9 process:

Once an applicant has been offered a position, make sure that Section 1 of the I-9 form has been completed by the first day of work.
Section 2 of the form must be completed no later than 3 business days after the employee begins working.

And take note: if you’re hiring an employee for a period of fewer than three days, both sections must be completed by the employee’s first day of paid work.

If you don’t want to wait for our next blog entries to read more tips to avoid common I-9 mistakes, check out our free guide—it includes all five potentially costly errors.

And let us know: What kind of system do you have in place to make sure that the Form I-9 is completed on time?

Be Diligent in Following Employment Eligibility Verification Procedures

Blake Forrester — Fri, 23 Sep 2011 15:31:00 -0800

Avoid Form I-9, Employment Eligibility Verification (EEV) mistakes by carefully following all of the applicable rules, regulations and laws. The Department of Homeland Security is cracking down on errors and mistakes in order to prevent fraud. No business wants to be visited by Immigration and Customs Enforcement (ICE) officials investigating violations of American law - so be prudent in faithfully following the procedures.

Imprisonment and/or Fines for Fraud

The United States requires employers to verify the eligibility of people to work in this country. This is a legal requirement during all economic times, good and bad. The form clearly warns businesses that penalties include imprisonment and/or fines for "false statements" or "falsified documents."

ICE will audit a company when it notices a pattern of errors and mistakes on its forms. Typos, misspellings and minor mistakes are considered "technical" or "procedural." Major mistakes with legal ramifications - like omitted signatures - are "substantive."

Who Must Fill Out this Form?

The EEV form states that it must "... be completed and signed by employee at the time employment begins." All new seasonal, temporary and permanent workers (not unpaid interns) must fill out this form and provide valid original identification documents. It doesn't matter how desperate a company is to fill a position, these American laws must be followed.

Most Common Mistakes

Many mistakes can occur while filling out the form. These are the most common mistakes in filling out the EEV form:

Corrections not initialed and dated
Failure to mark boxes for citizenship, residency or alien status
First date of work not listed
Incomplete information
Information doesn't match
Missing signatures
Not verifying expiration date of documents
Proper number and type of documents
Wrong or missing dates

Three-Day Rule

Remember the "Three-Day Rule!" This is an important guide concerning how long a company has to complete the EEV form. Once you have offered the job to the applicant and s/he has accepted, then you must have the employee fill out Section 1 of this form to check citizenship and immigration status on the first day of paid work.

The employer must complete Section 2 no later than the third business day of paid work. This procedure must be followed even if the employee is hired for a very short amount of time. This is the essence of the "Three-Day Rule."

Section 1

Section 1 must be filled out by the employee on the first day of paid work. This includes name, address, birth date, social security number, status boxes and signature line for name and date.

Section 2

The employer must fill out Section 2 showing that the identification documents were physically reviewed and verified. This includes title, issuing authority and expiration date for the documents. The business owner must sign and date this section.

Section 3

Section 3 is entitled "Updating and Reverification" — this is for rehires. It includes areas for new name, rehire date and if grant of work authorization has expired. The employer must sign and date this section.

List of Acceptable Documents

The United States government requires original documents, not photocopies. These documents are used for establishing identity for work authorization. Employer must physically examine documentation.

Instructions

This EEV form is to "document that each new employee (both citizen and noncitizen) hired after November 6, 1986, is authorized to work in the United States." The form must be filled out "no later than the time of hire...." The time of hire is the first paid work day.

E-Verify for Faster Online Processing

E-Verify is a free, Internet-based confirmation system managed by the Department of Homeland Security, which requires use of a Social Security Number (SSN). All employees (including temps) receiving compensation, must be entered into this system.

This online system completes checks within minutes. It cannot be used to check expired employment authorization; it is only for new employees. It has photo matching to protect against falsified identification documents.

The "Self Check" option enables U.S. employees to obtain work authorization before beginning a new job. Employers cannot require employees to use the Self Check option.

This online system does not replace the I-9 EEV form. The EEV form must still be completed and stored in paper, electronic or microfilm/microfiche format.

E-Verify is mandated in a couple of states. Businesses can enroll at "www.USCIS.gov."

How Long Must I hold these Forms?

Employers must properly complete, maintain, track and update work information. The expiration date on identification documents should be closely monitored. While it is illegal to "refuse to hire an individual because the documents have a future expiration date," these documents must be updated when the expiration date arrives. It is wise to automate this process because tracking the expiration date for a large number of people can be time-consuming.

The EEV form must be held for a minimum of three years. Hire and termination dates should be recorded. A business might be audited by ICE, thus it is important that they follow proper document maintenance, handling and storage procedures.

Avoid Mistakes by Being Diligent

Remember the "Three-Day Rule" — All paid employees must fill out the I-9 EEV form and this form must be completed within three business days of the first paid day of work.

Consistency is very important to ICE, so if you establish a pattern, continue it on all your paperwork. Employers should visit the government website (http://www.uscis.gov) to see the latest requirements and download forms. Carefully read the forms from top to bottom to avoid costly mistakes.

Download our quick guide titled Avoid Five I-9 Mistakes, including

Tips from four prominent immigration attorneys in the United States
News releases issued by government agencies about relevant legal settlements
U.S. Citizenship and Immigration Services’ Handbook for Employers

Common Form I-9 Mistakes

Blake Forrester — Wed, 10 Aug 2011 10:32:00 -0800

The I-9 form is standard paperwork that must be filled out by each person that is hired at a new job. It is a single page form, but many people make mistakes when filling it out that can cost them money and time. It is essential that this form be filled out correctly to avoid employer penalties.

Missing or Incorrect Forms
Common mistakes that are made when I-9 forms are being filled out include incorrect dates, transposed information and incomplete information. I-9 forms may also be misplaced by employers, which can lead to costly fines. Employers should also be sure that they ask for the correct identification documents from each employee.
Not Complying with The Three-Day Rule
Regulations state that I-9 forms should be completed before the employee has been employed with the company for three business days. The employee and employer must complete the entire form and the employer must receive and verify identification documents within three days to avoid having to pay steep fines.
Not Re-Verifying Information
Employers of people with some citizenship statuses are required to update and track the employee's documentation. Employers must remember to always have valid identification on file and request new copies of documents that are expiring soon.
Ensuring Identification Documents are valid
Managers who are hiring employees are required to ensure that the identification documents that are provided to them are valid. They also must ensure that they have the proper combination of documents from the three lists. The documents presented with the I-9 form may be from list A or lists B and C.
Not Maintaining Documents Properly
ICE regulations require every employer to destroy all I-9 forms from their employees either three years after the employee's hire date or a year after the employment has been terminated, whichever length of time is greater.
Not Having Proper Supporting Documentation for E-Verify Matching
E-Verify introduced a photo matching system in 2010 to prevent prospective employees from using fake identification to obtain employment. This system requires employers to compare the onscreen photo from their system with the photo that is printed on the identification provided by the employee.

ICE also requires employers to maintain copies of each employee’s photo identification, in addition to verifying the image using the E-verify system. Even when employers know the rules and do their best to follow them, it is possible for mistakes to be made. Every employer should have a system of checks and balances in place to ensure that their company is following all of the proper procedures in regards to I-9 forms.

I-9Compliance.com provides a free and easy method of helping you stay on top of your I-9 forms. Their electronic compliance solution will help you "audit" your I-9 forms before ICE does, keeping you ready to respond to any I-9 request by the government at a moment's notice. I-9compliance.com can help take away one of the major headaches of doing business in this era of increased immigration enforcement.

I-9 Compliance…More is Not Better

Blake Forrester — Wed, 03 Aug 2011 09:39:00 -0800

In an effort to be thorough and to ensure compliance with governmental regulations, companies are sometimes overzealous. This is of special concern in the case of the Form I-9 Employment Eligibility Verification process.

The need to prove that all of the company's employees are eligible to work in the United States has caused some employers to demand more documentation from non-citizens than is required by law. This is illegal. It can even trigger an unwelcome civil rights lawsuit initiated by the Department of Justice (DOJ).

The requirements placed on companies by The Immigration Reform and Control Act (IRCA) are:

To hire only persons authorized to work in the United States.
Not to discriminate on the basis of citizenship status or national origin.

In addition, employers are required to "treat all employees the same during the Form I-9 Employment Eligibility Verification process, regardless of their citizenship status," by the Immigration and Nationality Act (INA).

An employer may not:

Require more or different documents from noncitizens than from citizens.
Ask for documentation prior to employment if the employer suspects the applicant is not a citizen or has a foreign-sounding name.
Refuse to accept documentation with a future expiration date.
Refuse to allow the employee to choose which of the eligible documents he will provide.
Refuse to hire non-citizens except when the position requires citizenship by law.
Refuse to accept any documentation allowable by law.
Intimidate or retaliate against any employee who alleges discrimination, or who supports another employee's claim of discrimination.
Require an employee to present different or more documentation during the re-verification process than during the original eligibility process.

There is an entire section Department of Justice's Civil Rights Division, called the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC"), devoted to enforcing the anti-discrimination provision of the INA. Usually, within seven months after the receipt of a complaint, the OSC completes its investigation.

If the OSC determines that a company has engaged in a pattern or practice of discriminatory acts by requiring additional and unnecessary documentation to verify the work eligibility of noncitizen employees as compared to documentation required/requested of U.S. citizens, it can file a lawsuit against the company in court. In addition to legal penalties, a company found guilty of these practices may be forced to pay the victim(s) various types of relief.

A company's best option is to adhere strictly to the letter of the law and not adopt the attitude that "more is better."

Is Mandatory E-Verify on the Way? Ask the House of Representatives

Blake Forrester — Wed, 27 Jul 2011 15:29:00 -0800

Recently the Subcommittee on Immigration Policy and Enforcement of the U.S. House of Representatives Judiciary Committee debated H.R. 2164, a bill proposed by Texas Republican Rep. Lamar Smith which would mandate that all employers use the federal government's electronic E-Verify employee verification tool. H.R. 2164 would also increase penalties for knowingly hiring unauthorized foreign nationals. According to some observers, Smith's bill would have more impact on U.S. employers and their hiring practices than any bill since 1986's Immigration Reform and Control Act, which created the I-9 process.

During the subcommittee hearing, members of Congress and witnesses called before the subcommittee expressed a variety of perspectives on the bill. Rep. Smith, a longtime proponent of stricter immigration policy, noted that in some ways it can be easier to work illegally in the U.S. than to get medical care or do business with a bank, and that polling shows that Americans are overwhelmingly in favor of correcting this sort of fundamental absurdity in the U.S. immigration system. Subcommittee chairman Rep. Elton Gallegly argued that despite its added penalties, Rep. Smith's bill actually makes the employment verification process more fair for employers. This is because under H.R. 2164, employers would be permitted to make offers of employment contingent on clearance by E-Verify. Under current law, E-Verify can only be run after an employer is formally hired, leading to a number of complicated procedural and legal problems for employers when E-Verify cannot confirm that new employees are authorized to work.

Opponents of Smith's bill also spoke at the subcommittee hearing. Rep. Zoe Lofgren, the leading Democrat on the subcommittee, noted that mandating E-Verify does not address the fundamental reasons that employers hire unauthorized workers in the first place. Smith's bill, therefore, will serve no purpose other than to unnecessarily grow the government if it is not combined with measures designed to legalize the population of undocumented workers who can be exploited for "under the table" employment. Tyler Moran, the policy director at the National Immigration Law Center, agreed with Rep. Lofgren, stating that Smith's bill by itself would only serve to damage the U.S. economy by pushing illegal workers further underground.

With even prominent figures who generally oppose immigration to the U.S. split on H.R. 2164 due to issues they see with the bill's limitation of state and local authority over immigration, the future of this bill is unclear. However, all employers would do well to pay close attention to any changes proposed in the U.S. employment verification system in the coming months.

I-9compliance.com provides a free and easy method of helping you stay on top of your I-9 forms. Their electronic compliance solution will help you "audit" your I-9 forms before ICE does, keeping you ready to respond to any I-9 request by the government at a moment's notice. I-9compliance.com can help take away one of the major headaches of doing business in this era of increased immigration enforcement.

ICE Notifies Employers it Will Audit Their Records to Check for Hiring of Illegal Immigrants

Blake Forrester — Wed, 20 Jul 2011 09:35:00 -0800

The United States Immigration and Customs Enforcement agency has issued a statement that they will begin the fifth surge in a series of investigations aimed at investigating potential employers of illegal immigrants. Approximately 1000 employers are being notified of intention to investigate.

"The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructures and key resources," the ICE news release stated.

"Ultimately, our focus on business related to critical infrastructure and key resources aligns with our priority as an agency to first and foremost minimize threats to national security and public safety," Ice spokesperson Gillian Christensen suggested.

"ICE's worksite enforcement strategy focuses on employers, penalizing those who knowingly violate the law and deterring others from breaking the law," Christensen added. Stating that ICE "may arrest workers we encounter," she restated that the goal was to make examples of the employers that they could pinpoint and not to arrest and deport illegals.

According to ICE, the program is not being developed in a systematic format. Decisions on which random companies will be investigated will be done on "tips," possibly from anonymous sources and similar to the manner in which drug cases are built.

Claiming the scope would be broad, the federal agency stated that the focus would be on corporations in the banking and finance industry, commercial nuclear reactors, dams, drinking water and water treatment systems, government facilities, information technology, telecommunications and transportation systems, as examples.

No definitive statement was given with respect to "I-9 audit surges" against employers who depend on transient and seasonal workers to prepare their product for market. These industries include the agriculture and construction industry.

While reaffirming that the audits are intended to foster a culture of compliance among potential employers of illegal immigrants, the agency noted that this is the fifth such audit program. In the fiscal year 2010 ICE arrested 196 employers from 2,338 audits. The 2,196 audits of the preceding 2009 fiscal year resulted in 114 employer arrests.

Penalties from convictions for hiring illegal immigrants include fines and incarceration, but can also result in expulsion from the immigrant worker program and a ban from receiving future government contracts. ICE actually implemented this prohibition on 97 businesses and 49 individuals in the 2010 operating year.

I-9compliance.com’s provides an electronic compliance solution to help you with your I-9 forms, keeping you ready to respond to any I-9 request by the government at a moment's notice. Visit I-9compliance.com and get started today.

Alabama Passes Tough New Immigration Law

Blake Forrester — Wed, 13 Jul 2011 09:39:00 -0800

Recently, the state of Alabama passed its own immigration law, which some are calling one of the toughest laws in the country. The law easily passed through the Alabama legislature, following a recent ruling by the U.S. Supreme Court that upheld Arizona’s law to impose sanctions against businesses that hire undocumented workers. The Legal Worker’s Act of 2007 requires a loss of business license and fines for companies that violate the law.

The new immigration law in Alabama also requires businesses to use the E-Verify system, also known as the I-9 system, to verify that job applicants can legally work in the U.S. Additionally, the law also states that transporting or harboring an illegal immigrant is a crime. Similar to the Arizona law passed in 2010,law enforcement personal are able to ask for documentation if they suspect a person is not of legal status.

Opponents of the E-Verify system point out the challenging position in which employers are placed. Before verifying the legal status of job applicants, the employer must first offer the person a job. If the person is not eligible to work in the U.S., the employer is obligated to inform the person of their rights. If the person does not speak English, the employer must read the rights in the person’s native language. Failing to comply with the statue can result in fines and business closure.

A good resource that helps Alabama employers find qualified workers and follow the law is I-9Compliance.com, an integrated solution that can manage the complex system of I-9 compliance. This web-based solution is capable of streamlining the E-Verify process in one or multiple locations.

As a designated agent, I-9Compliance.com recommends that employers also trace the social security number of a prospective applicant, where legality is a concern. The social security number trace is typically part of the standard pre-employment background check. This might help to determine if the social security number is valid.

A valid trace indicates the employer can conduct the E-Verify process. Typically, the process for a social security trace is less time consuming and can prevent non-compliance with the Alabama law. An invalid return on the social security number eliminates the need for the employer to follow-up with the E-Verify system after making a job offer to an ineligible applicant.

I-9Compliance.com is a designated E-Verify agent. Using an integrated system with the Department of Homeland Security ensures real-time confirmation and compliance if there are any changes to the law. This system also notifies employers when the documentation for current workers expire, providing ongoing compliance.