3 ways to clean your existing I-9s

Are you worried what an ICE audit might find in your I-9 records? You’re not alone. Many HR execs worry what an investigation by U.S. Immigration and Customs Enforcement (ICE) might uncover. 76 out of 100 paper I-9s have errors, and those errors come with expensive fines, so there is good reason to fear what might be lurking in your I-9s.

So what can you do to mitigate this risk? There are three approaches to scrubbing and cleansing your existing I-9s.

Approach 1: Manually detect and correct errors

Manual I-9 AuditUntil a few years ago, this was the only option available to employers. With this approach you deploy subject matter experts to review the I-9s for errors and to manually fix the errors they find. You can use internal experts, such as I-9 specialists in HR, or external I-9 experts such as attorneys or firms that specialize in auditing and correcting I-9s. Either way, auditing and correcting I-9s by hand on a large scale is extremely expensive as the labor cost adds up very quickly. For this reason not many large employers have done it.

In addition to the cost, if your organization has multiple work locations where your I-9s are stored, you have to decide whether to get the files to the experts (pack and ship your I-9s to a central location) or get the experts to the files. Neither choice is perfect. One complication, for example, is that some errors can only be corrected in person with the employee.

Approach 2: Electronically detect errors, manually correct them

I-9 AuditA few years ago, a set of systems and services emerged that partially automate I-9 remediation. These solutions scan your paper I-9s to convert them into a digital format, then they electronically analyze the I-9s for errors. You get a report that highlights each error. The error report can be delivered in a spreadsheet, or in a system-based format that lets you click through to the records in error, as they are now in electronic format.

In addition to analyzing the paper records you’ve scanned into the system, these I-9 solutions will also import and audit records created in another electronic system.

Newer versions of these systems specify what needs to be done to correct each error, which is significant as it means you can now use non-specialists to make the changes needed to bring your I-9s into compliance.

This partially-automated approach saves you the time of analyzing each record for errors. So instead of having to touch every record, you only need to touch the records in error. On average 24% of paper I-9s are error-free, so there are 24% fewer records you’ll have to touch. And, for the 76% of records you still have to touch, you’ll spend much less time on each record as you no longer need to find the errors. The task is simply to fix the errors that the system has already found for you.

By automating some of the critical elements of I-9 remediation, these systems provide value. However, even with some entire chunks of the manual labor eliminated, most employers still find it cost-prohibitive to remediate a large number of I-9s when each record in error has to be manually touched.

Approach 3: Auto-cleanse your I-9s

Fully automated I-9 remediation solutionA new class of electronic I-9 systems has just recently come on the market. These systems automate both the error analysis and correction. Like the systems in Approach 2, they analyze I-9 records that are scanned in from paper or imported from another electronic system. The difference is these advanced systems automatically correct a majority of the errors for you. With over half of the errors now being resolved without manual intervention, your workload is cut in half or more vs. your effort with Approach 2 described above. For the subset of records you have to touch, the time needed to fix the errors is compressed since the system spells out how to correct each error.

By eliminating the majority of the manual labor, these auto-cleansing systems have finally made it viable for employers to remediate I-9 records on a large scale. The number of employers opting to use these systems is evidence of this. In the first 10 months after it was released, Tracker Corp’s auto-cleansing I-9 remediation solution was used by employers to cleanse over a million legacy I-9 records. These employers collectively eliminated over $500 million dollars in potential liability in just 10 months. Tracker’s product auto-resolves up to 74% of I-9 errors, so employers can now bring their active I-9s into full compliance with a fraction of the effort, time and expense of other approaches.

This post is part of our ongoing series on ICE I-9 audits. Check back or sign up to be alerted as we cover other topics. Other posts in the series include:

Discover how Tracker’s auto-cleansing I-9 remediation solution can automatically mend up to 74% of paper I-9 records. It guides your field managers in correcting the rest.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only.

5 steps to take Before ICE knocks

What comes to mind when you think of an ICE agent handing you a Notice of Inspection?  (ICE, U.S. Immigration and Customs Enforcement, is the government’s enforcement body for Form I-9 compliance.)

If you’re like many HR execs, when you think of this scenario, questions start firing:

Questions3

 

  • What will they find?
  • How bad will it be?
  • How high could the fine go?
  • Could this lead to publicity we don’t want?
  • How will this reflect on me?

 

 

A sense of dread often accompanies these questions.

Get prepared now

During an ICE Form I-9 inspection, you have three days to pull together your response package – 72 hours. This certainly does not leave you any time for reflection and strategic planning. The time to build a parachute is before you need it. And the time to lay the groundwork for the I-9 audit is before you’re served with the Notice of Inspection.

5 steps to prepare your organization

There are five steps every organization should take in advance of an I-9 audit, in order to make the best use of your 72 hours.

Step 1: Communicate your chain of command

MegaphoneA Notice of Inspection (NOI) can be served to any of your locations. This means you need to have procedures in place to ensure that receiving an NOI will trigger an immediate and appropriate response from any of your locations. You should define exactly who in your organization should be notified, and what should happen if they can’t be reached.

As outlined in this post that describes The ICE I-9 Inspection Process, the NOI may be presented in person or sent via certified mail. Having a uniformed officer show up at your door usually sets off alarm bells with staff, which is good as it serves as a call to action. You want to make sure when the NOI is delivered by certified mail it sets off the same alarm bells. You want to prevent the situation where someone signs for the certified mail then puts it in a mail slot or on a desk for the right person to see when they happen to come by next.  Find a way to ensure that anyone who might sign for the NOI at any of your facilities will recognize it as something that requires immediate attention.

Then make sure anyone who might receive the NOI knows exactly what to do. Typically you want the highest level person at the facility to be notified immediately, via a live conversation. Make it clear that leaving a voicemail does not fulfill the requirement. The person needs to be contacted live. Your policy should state what should happen if the right person cannot be reached live.

You also want to make sure the appropriate individuals at your headquarter office are also contacted right away. This usually includes your top HR executive, counsel, and possibly one or more others. Who is responsible for contacting each of these people? What should be the next steps if a person cannot be reached live? Think through these possible scenarios and make provisions for them in your policy. It is fairly typical for the policy to outline a chain of communications. For example, the management team at the office being audited might be responsible for alerting the appropriate people in corporate HR, who in turn are responsible for notifying counsel.

Finally, you’ll need to communicate this policy to the appropriate people at all of your locations, and find a way to keep the knowledge fresh throughout personnel changes and time.

Step 2: Identify your counsel

Magnifying GlassYou will want to engage counsel to represent you during the ICE audit. An experienced attorney will be in the best position to know your rights and advocate for those rights throughout the I-9 audit process. If you don’t have in-house counsel who will be able to represent you during the audit, you should secure appropriate external counsel in advance.

If you are drowning, it is not the right time to learn how to swim. Likewise, if you are in the throes of an I-9 audit, it is not the right time to conduct your search for good legal counsel. Do this in advance.

Step 3: Define your process for record access

RecordsDuring an I-9 audit, ICE often requires you to produce other records that allow them to corroborate your I-9s. These records typically include an employee roster, payroll reports, tax statements, articles of incorporation, and business licenses. Make sure you know in advance where this information resides, and who will be able to produce the requested reports from your various systems and files.

Who in your organization knows how to pull a report for a particular work location showing both employees who are active and those terminated in the past three years, along with hire date, termination date, SSN, birth date and possibly other information ICE may request?

Are there people in your organization who know how to pull payroll reports by location and timeframe or will you have to involve your payroll vendor? If your payroll vendor needs to be involved, what is the process to make immediate contact with the right person? How long will it take them to pull a report?

Who has access to your tax statements? Where are your articles of incorporation and business license stored?

Clear the way in advance so you know the responsible parties and the process for each information source you’ll need. Ensure that you’ll be able to get the information in less than 72 hours. It is to your advantage to get the fastest possible turnaround. The earlier in the process you get the information you need, the more time you have to look for issues and potentially repair those issues.

Step 4: Understand how your electronic I-9 vendor will support you

Computer image no shadowIf you use an electronic I-9 system, you want to understand in advance the support you will get from your vendor. Ask the vendor to outline the assistance they will provide in the event of an ICE audit. Will you have a single point of contact? What is the process for contacting that person and getting immediate attention? What is the process you will use to request the needed records? What is the vendor’s turnaround commitment for producing the requested I-9 records? You must have the records within 72 hours but the earlier you get them the better, as that will give you more time to identify issues and potentially take action to mitigate those issues.

The Notice of Inspection will typically ask you to supply information about the electronic I-9 system you use to ensure it meets the requirements for audit trails, electronic signatures and more. Ask your I-9 vendor for a copy of the information they use to fulfill this typical NOI request. If you use a vendor who serves large organizations, they will have experience helping customers through ICE audits, and the info they submit to fulfill this request has already been vetted by ICE.

Following is a list of questions that in a perfect world you asked when you evaluated your I-9 system. But if you didn’t, we recommend you ask them now, before the ICE audit:

  1. Does your solution log all system activity as required by ICE into ICE-compliant audit trails? At the time the Section 2 and Section 3 signatures are submitted, does your solution make a read-only copy of the I-9 with a date/time stamp? If an I-9 is changed, is a new read-only copy made upon new signature submission, with a date/time stamp?
  2. Please outline the regulatory requirements for electronic signatures, and verify that your solution meets them.
  3. Are there customers of your I-9 system who have gone through an ICE audit? If yes, please describe the audit results for records that were created in your system.

For a full list of questions to ask in order to evaluate an I-9 system, see I-9 Eval Guide: Questions You’ll Be Glad You Asked.

Also, since ICE often asks to see the change history of I-9s, make sure you can pull a summary report from your I-9 system that shows all changes across an I-9’s signing history.

Step 5: Scrub & cleanse your records

Scrub brush with bubblesThe final step to ensure you are ready to make the best of the 72 hours you get in an ICE audit is to make sure your I-9s are ready for ICE scrutiny. This topic is covered in detail in this separate post: 3 ways to clean your existing I-9s.

 

 

This post is part of our ongoing series on ICE I-9 audits. Check back or sign up to be alerted as we cover other topics. Other posts in the series include:

Discover how Tracker’s auto-cleansing I-9 remediation solution can automatically mend up to 74% of paper I-9 records. It guides your field managers in correcting the rest.

 

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only.

The ICE I-9 Inspection Process

Lots of Questions in ICE WebinarIn our recent webinar with U.S. Immigration & Customs Enforcement (ICE) there were a great deal of questions about the process an ICE audit takes. What happens first? Then what? What are the possible outcomes? What are the employer’s options for each?

It starts with a Notice of Inspection
ICE kicks off their I-9 audit with a Notice of Inspection (NOI). Being on the receiving end of an NOI is not a calming experience. ICE may serve you with an NOI in person, or you might receive it from them by certified mail. The NOI spells out exactly which I-9s you need to produce for the inspection. It will typically ask for I-9s for all current employees as well as those terminated in the previous three years, for one or more work locations. The NOI also informs you of your contact at ICE for the investigation.

…and probably a Subpoena
The NOI is often accompanied by a subpoena which requires you to produce other records that allow ICE to corroborate your I-9s. These records may include an employee roster with specific information about each employee, monthly payroll reports, tax statements, business licenses, or other records.

You have three days
72 hours to deliver records to ICEAt this point you have up to three business days, 72 hours, to pull together the requested records. The NOI will give you the date and time you are required to present your package of records to the assigned ICE inspector or special agent. As you can imagine this does not give you much time! We recommend you always ask ICE for an extension. We’ll cover this and other recommendations in a future post that covers what to do immediately when you are served with a Notice of Inspection by ICE.

Next you may get any of these three Notices
After you turn your I-9s and other documents over to ICE, you then wait for a period of weeks or months. During this time ICE is reviewing your I-9s for completeness and accuracy, and verifying the employee documentation. During this period you can expect to receive one or more of these next notices from ICE. These three notices can be issued at any time prior to the completion of the audit.

3 ICE NoticesNotice of Technical or Procedural Failures, with 10-day turnaround
This notice identifies the technical and procedural violations ICE found in your I-9s, and gives you 10 days to correct them. If the records you turned over to ICE included records created using the paper I-9 form, as discussed in this previous post your error rates will likely be high and it is almost assured you will get this notice. You’ll want to make every effort to correct as many of these errors as possible within the 10 days, to minimize your fine. You’ll have to assign one or more trained I-9 resources to the task, which comes with a cost. But if you compare the resource cost to the penalty $ that can be avoided, you’ll find it is worth it. After ten business days, uncorrected technical and procedural failures are lumped together with substantive violations and assigned the same dollar penalty.

Notice of Discrepancies
This notice asks for additional information in cases where ICE cannot determine an employee’s work eligibility based on a review of the I-9. You should provide the employee with a copy of the notice right away, and give them an opportunity to present additional documentation within the timeframe specified.

Notice of Suspect Documents
If ICE determines that you are employing a person who is unauthorized to work, you will receive a Notice of Suspect Documents. The notice advises of possible criminal and civil penalties for continuing to employ that individual. Don’t panic! There may be an error that can be explained. You should inform the employee without delay, and give them a chance to explain any problems or produce additional documentation within the timeframe specified. If they do so, follow up with ICE immediately. If after reviewing the additional documentation ICE still determines the employee to be unauthorized to work, you have the unpleasant task of terminating the employee.

Then it ends with one of these three Notices
When ICE completes their investigation, you will receive one of these last three notices:

Compliance Notice - Excellent!1.  Compliance Notice, or Notice of Inspection Results
If you receive a Compliance Notice, excellent! ICE has found your I-9s to be in compliance. You can breathe easier now. This is an achievement to be proud of, and it shows that your policies and practices have protected your business. If you work for an organization with many locations and high-volume hiring, you know it took concerted effort to bring your organization to a place where it can reliably produce high compliance levels.

ICE Warning Notice2.    Warning Notice
This means ICE found substantive violations, but feels circumstances do not justify a fine, and they have an expectation that your organization will be compliant in the future. While a Warning Notice means you avoided a fine, it also means your organization will go through another ICE investigation. The Warning Notice will include the date of re-inspection.

ICE Notice of Intent to Fine (NIF)3.    Notice of Intent to Fine (NIF)
The Notice of Intent to Fine spells out the fine ICE has assessed your organization. A Notice of Intent to Fine can be issued for substantive and uncorrected technical I-9 errors, as well as for violations having to do with knowingly hiring or continuing to employ unauthorized workers. Once you receive an NIF, you have 30 days to respond. What should you do?

Your first option is to try to negotiate a settlement with ICE. More often than not, employers get the NIF fine reduced. The Office of Chief Counsel at the ICE field office may authorize a 10% reduction on their own. A greater reduction can be negotiated with concurrence from the ICE Special Agent In Charge. In the 4-year period ending in 2012, 68% of NIFs were reduced, with an average reduction of 40%. Negotiating a fine reduction may become more difficult in the future, however, as there is currently scrutiny on the amounts by which ICE penalties have been reduced.

If negotiating a fine reduction with ICE fails, your next option is to request a hearing with an Administrative Law Judge at the U.S. Department of Justice.

Either the ICE field office or the Administrative Law Judge then issues a Final Order with your final assessed fine. If you don’t take any action within 30 days of receiving the Notice of Intent to Fine, ICE will issue the Final Order.

This post addresses a number of questions that came up in our recent webinar with ICE. Check back or sign up to be alerted as we cover other topics from the ICE webinar in future posts. Other posts in the series include:

Discover how Tracker’s auto-cleansing I-9 remediation solution can automatically mend up to 74% of paper I-9 records. It guides your field managers in correcting the rest.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only.

The I-9 Audit: Lessons Learned in today’s webinar with ICE

Our webinar with U.S. Immigration and Customs Enforcement (ICE), How to Prepare for the I-9 Audit, ended just minutes ago and covered a lot of ground. Hundreds of questions poured in during the webinar. It was evident that those who participated have a keen interest in protecting their business. This is the first in what will be a series of posts to outline the key lessons learned and to answer the many good questions that we didn’t have time to address during the webinar.

ICE is the largest investigative agency in the Department of Homeland Security. They have more than 20,000 employees working in 400 offices in the U.S. and around the world (source), and are responsible for enforcing the nation’s immigration and customs laws.

ICE audits U.S. employers to ensure employers are processing and retaining I-9s for  employees in a manner that is compliant with the law.  ICE has a vested interest in educating employers and helping them avoid I-9 fines and criminal sanctions. ICE wants employers to be fully compliant, and so do we. This was the purpose of our webinar.

I-9 audits & fines risingWe’ve seen the number of ICE I-9 investigations grow year over year. We’re now seeing fines that reach into the $ millions. And many of us have cringed as we’ve watched companies learn the hard way that a negative outcome from an ICE audit can bring unwanted publicity.

How likely is it that your organization will get investigated by ICE and have to face these consequences? This is a common question. We heard in the webinar that one thing that influences ICE to choose certain employers to investigate is leads they get from the public as well as from state and federal agencies. Since it is not possible to predict these leads, we recommend instead that you make sure your I-9s are compliant to begin with, before an investigation. This way you’ll sleep at night. A customer of ours who cleansed a large number of I-9s recently described the feeling of relief when he was done. He said, “I sleep well now. I no longer have to live with a ticking time bomb.”

We recommend a good place to start considering how to get your I-9 compliant is to calculate your potential liability if you don’t. The dollar figure can be surprising. The figure is high because the typical error rate is so high.

76% of paper I-9s have at least one fine-able error. This error rate is the aggregate result of the million plus paper I-9s that have been processed through our I-9 remediation product. It represents a typical paper I-9 error rate for high-volumI-9 error ratee hiring employers with many locations. Compliant I-9 processing is extremely challenging for these organizations. If your organization does a high volume of hiring, has multiple locations, and has paper I-9s, your error rate for those I-9s is likely about 76%.

To calculate your potential liability, multiply your number of paper I-9s by 76% to get the number that are likely in error. Now multiply this estimated number in error by the $935 penalty listed in ICE’s I-9 penalty matrix. This is the penalty for first offense substantive and uncorrected technical errors.

So now you’ve calculated your potential liability. What do you do about it?

Check back or sign up to be alerted as we cover these topics from the ICE webinar in future posts:

We will also address the questions asked during the webinar that were common across so many attendees.

Discover how Tracker’s I-9 remediation solution can automatically mend up to 74% of paper I-9 records, and guides managers in correcting the rest.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

The I-9 Audit: Come learn from a U.S. Immigration & Customs (ICE) Inspector

Record numbers of employers are having their Form I-9s investigated by U.S. Immigrations & Customs Enforcement (ICE). We’ve met many HR and compliance officers who went into an ICE audit thinking their compliance with legacy I-9 records was high, only to have the investigation reveal otherwise.  With an average error rate of 76% on paper I-9s, it is no wonder.

Join our free webinar on March 12th, How to Prepare for the I-9 Audit, to hear about the audit process directly from ICE, and learn what you can do now to prepare.

Most of us have read about employers being served I-9 administrative fines that now reach into the millions of dollars. An organization with 25,000 paper I-9s carries a potential liability of over $13 million. In addition to large fines, an ICE investigation with poor outcomes can also bring unwanted publicity.

If you’re an HR executive, compliance officer, or responsible for recruiting and hiring, this webinar will help you prepare for a knock on the door from ICE. You will learn:

  • How to prepare in advance
  • What to do immediately when ICE knocks on the door
  • The steps in an ICE audit, what to expect in each step
  • Lessons learned from supporting real-world audits
  • Error types learned from analyzing over 1M records

This free webinar will be held March 12th at 10am PDT | 1pm EDT. To register for the webinar, visit How to Prepare for the I-9 Audit.

E-Verify mandate proposed in New Jersey

Bills were introduced this year in both the Senate and Assembly in New Jersey that would make it mandatory for all employers in the state to use E-Verify. E-Verify is a web-based service that employers use to confirm that new hires are authorized to work in the US. It is operated jointly by the U.S. Department of Homeland Security and Social Security Administration.

The New Jersey bills, NJ S354 and NJ A101, would require all New Jersey employers to use E-Verify to confirm the employment eligibility of new hires within 90 days of their hire date. It is important to note that the less stringent 90 day deadline stipulated in the proposed New Jersey legislation would not supersede USCIS rules that require the employer to start the E-Verify process no later than the third business day after the employee starts work for pay.

If this legislation passes, New Jersey would join Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina and Utah in requiring all or most employers to process new hires through E-Verify.

Many other states have laws mandating E-Verify use for specified employment situations. Bookmark this E-Verify Laws Map to keep up with the E-Verify laws and legislation proposed in each state.

Discover how Tracker’s electronic I-9 solution delivers complete compliance with just 15% of the effort. Feel free to contact us, we’d love to hear from you.

Half a Million Employers now using E-Verify

We’ve just heard from US Citizenship and Immigration Services (USCIS) that as of the end of 2013, half a million employers are now using E-Verify, at 1.5 million worksites.

As you know, E-Verify is the USCIS web-based service that employers use to confirm their new hires are authorized to work in the US. Right now, except for federal contractors/subcontractors in certain situations, the US government does not mandate the use of E-Verify. Federal legislation has been proposed to change this, but as of today regulation of E-Verify is up to the states. It is up to each state government to decide how it wants to influence or regulate the use of E-Verify for employers in the state.

If you work for a large, multi-state employer, you probably know how difficult it can be to keep abreast of the current and proposed laws that might affect you in each state where you have offices. (This E-Verify Laws Map might be helpful to you).

About 30% of states mandate that some private employers use E-Verify, typically those working state contracts, or those with more than a certain number of employees. Only four states today require all employers to process new hires through E-Verify (Alabama, Arizona, Mississippi, South Carolina). Three others require all employers over a certain size to use E-Verify (those who employ above 10 in Georgia, 15 in Utah, and 25 in North Carolina). Given this, at least some of the 500,000 employers who use E-Verify are doing so voluntarily.

An increasing number of employers who use Tracker’s I-9 & E-Verify solution voluntarily E-Verify all new hires, even at stores/restaurants/offices located in states with no mandate. These customers are taking the sound position that it will pay to be ahead of the curve on compliance, especially since there seems to be a broad base of support for a nationwide E-Verify mandate. The Tracker customers who’ve had to go through audits with US Immigration and Customs Enforcement (ICE) were richly rewarded for their commitment to compliance when they passed the ICE inspection with ease.

Speaking of audits, we recently supported a customer through a state audit of their E-Verify records. While we’ve supported a good number of customers through ICE I-9 audits, this was the first time we’ve been involved in a state audit of E-Verify records. We will keep you posted if we start seeing a trend.

If your organization is not yet using E-Verify, you may find this paper helpful when you are ready to get started: How to Prepare Your Company to Use E-Verify.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.

E-Verify Resumes Service: What Employers Need to Know

E-Verify OpenToday US Citizenship & Immigration Services (USCIS) brought their E-Verify service back online and provided the instructions posted below for employers. The service was unavailable from October 1-16, 2013. If you hired employees during the 16 days E-Verify was offline, or if you had E-Verify cases in process, you will want to carefully follow these USCIS instructions.

If you submit E-Verify cases manually and hired employees during the offline period, you will need to log into the E-Verify website and manually key in the data required to submit a query for each person you hired during the offline period, being careful to follow the special instructions below from USCIS. If you use the Tracker electronic I-9 & E-Verify solution, your delayed new hire cases can all be submitted automatically in a single batch process which incorporates the USCIS special instructions. You won’t have to pull up the individual I-9’s. This will save you time, especially if you work for a high-volume hiring organization.

Below are the instructions posted by USCIS, which you can also read on the E-Verify website:

E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available. The following information addresses questions on how the federal government’s shutdown affected E-Verify and Form I-9.

Information For Employers

Form I-9

The Form I-9 requirements were not affected during the federal government shutdown. All employers must complete and retain a Form I-9 for every person hired to work for pay in the United States during the shutdown.

E-Verify

Employees who received a Tentative Nonconfirmation (TNC)

If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result

If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule

You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines

During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees

If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

  • Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer provided you after you contested the TNC. Federal business days are Monday through Friday and do not include federal holidays.
  • Contact SSA or DHS by the new date to resolve your TNC.

If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience. For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

E-Verify Services Suspended Due to Government Shutdown

E-Verify Closed

As of the time of this post, the US Federal Government has yet to reach a budget agreement and a partial government shutdown is in effect.  Among the many Federal Agencies that are affected by the shutdown, the Department of Homeland Security will suspend E-Verify until funding is restored. Continue reading for more details.

Note that a federal government shutdown does NOT impact an employer’s I-9 responsibilities. Employers should continue to process I-9s as they normally would. Employer should also expect to create cases in E-Verify when E-Verify becomes available.

According to the E-Verify home page (here), as a result of the shutdown employer will be unable to:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports
  • View ‘Essential Resources.’ Please note that all essential resources may be found by visitingwww.dhs.gov/e-verify.

In addition, E-Verify Customer Support and related services are closed. As a result:

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable. You may send e-mails, however, we cannot respond until we reopen.
  • E-Verify webinars and training sessions are cancelled
  • E-Verify Self Check will not be available

To minimize the burden on both employers and employees, E-Verify has implemented the following policies:

  • The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. E-Verify will provide additional guidance once normal operations are restored. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. E-Verify will provide additional time once E-Verify reopens.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).

When E-Verify service resumes, employers will need to process the backlog of hires that would have otherwise been run through E-Verify but for the shutdown. If you still complete the Form I-9 on paper, here are some ideas for how to plan ahead and get through backlog:

  1. Keep a consolidated list of new employees who will need to be processed. Have their Form I-9s handy so you can churn through them quickly once E-Verify services resume.
  2. If the government shutdown lasts awhile, consider adding additional staff to help get through the backlog.
  3. Be prepared to answer questions, especially for those employees who are still in the process of contenting TNC, which they have been granted extra time to resolve.
  4. Carefully monitor the situation, and be prepared to resume E-Verify transactions as soon as you can after E-Verify service is restored.

If you process I-9’s electronically with a system like Tracker I-9 Complete with E-Verify, managing the E-Verify process during the shutdown is easy. Backlogged cases are seamlessly managed through automated processing and reminders.

Again, please note that a federal government shutdown does NOT impact an employer’s I-9 responsibilities. Employers should continue to process I-9s as they normally would.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.

 

ICE Quietly Knocks on the Door: 1,000 New Audits

U.S. Immigration and Customs Enforcement (ICE) appears to have launched its latest crackdown on I-9 compliance. While no public announcement has been made, according to reports by attorneys and the Wall Street Journal, ICE inspectors have quietly knocked on the doors of about 1,000 businesses in the past few weeks, handing each a Notice of Inspection (NOI).

Over 3,000 audits last year

While over 3,000 businesses had ICE inspectors appear on their doorstep to present audit notices in 2012, it has been some time since ICE has served a large “wave” of notices like this, all in one fell swoop.

What to expect if they come knocking

As you may know, when you receive a NOI, you have 72 hours to collect the Form I-9s and other records ICE demands. An audit can include any sampling of your workforce, and often includes I-9 records for current employees as well as those terminated within a specified timeframe, across multiple work locations. ICE has broad authority in how it conducts audits, and in some cases has audited an initial set of I-9 records, then later expanded the audit to demand further records.

If you use paper I-9s, brace yourself for a paperwork fine of approximately $555 per record

Paper Form I-9

Here at Tracker we have pretty deep insight into the error rates of legacy I-9 records, since we have an automated I-9 remediation product, Tracker I-9 Resolve. Having processed about a million records so far, we know that on average, 75% of paper I-9s have at least one error. 

Using the average error rate, the weighted average of each error type, and the cost of that error type, we’ve been able to calculate that on average, each paper I-9 has a potential liability of $555.

You should also be prepared to clear calendars and dedicate the next 72 hours to responding to the NOI. With paper I-9s, we estimate it takes the equivalent of 5-6 days of labor to prepare your package for each 1,000 records ICE audits. Unfortunately, the more records and work locations included in the audit, or the less tidy your filing system, the bigger the effort to round up all the paperwork that’s required.

What should you do to be prepared for an ICE audit notice?

If you use paper I-9s, you should consider these steps:

  • Audit a sample of your existing paper records. This will give you an idea of the compliance level of your historical records.
  • Screen a sample of the I-9s your organization creates with the next set of new hires. Since compliance can vary by individual and office, try to screen a sample from each work location. This will give you an idea of your current compliance rate for new hires, and will reveal your most critical training needs.

Based on what you learn from the steps above, you’ll want to initiate training, standardize your I-9 practices, conduct additional audits, and take steps to remediate those I-9 that are found to be out of compliance. Unless your process calls for someone to double-check each I-9 immediately after it is created (and also each reverification), what you will likely discover is your error rate on both historical records and newly-created records is pretty close to the 75% cross-industry average.

With paper I-9s, the only way to improve your compliance levels is to increase the amount of time you put into I-9 processing, including screening and correcting each new I-9 as it is created. Tracker’s I-9 & E-Verify Calculator shows that in order to achieve high compliance with paper I-9s, an organization has to devote 107 minutes of labor for every new employee it hires. For many organizations, devoting this level of resources is simply not feasible.

So, once you determine your actual compliance levels, you might ask how important it is to increase those compliance levels. If it’s important, you can solve the problem by increasing your manual efforts or implementing an electronic I-9 system. You want to ensure that the system you select provides complete compliance for all new hires, and allows you to easily remediate your existing records without specialists or excessive labor. For guidance on the key capabilities to look for, read our free whitepaper: 5 Most Critical Requirements for I-9 Automation.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.