Editor’s Note: We are pleased to introduce two respected experts in the field of Immigration Law and I-9/E-Verify compliance as our guest bloggers for today’s post, Robert Loughran and Susan Kelly of FosterQuan, LLC. Their post continues our coverage of the DHS final electronic I-9 rule released last week.
On July 22, 2010, the Department of Homeland Security (DHS) published a final rule amending the June 2006 interim regulations relating to signatures and storage of electronic Forms I-9. In light of this final rule, we wish to share with employers who have electronic Form I-9 verifications systems, or those employers who are considering moving to an electronic system, some of the practical implications that the final rule has on using an electronic system for Form I-9 completion and storage.
First, the final rule clarifies that the employer has three business days to complete Section 2 of the Form I-9, where information is recorded relating to the employee’s identity and work authorization, as well as the employee’s date of hire, the employer’s certification signature, and the business name and address. This modification reduces the confusion previously created by the instruction that the form be completed “within three days.” Thus, because the final rule makes clear that only business days will be counted, most employers need not count weekends or federal holidays when determine its Form I-9 completion deadlines. Retailers and other similarly situated employers may still be held responsible for weekends and holidays if those days are ordinarily “days on which the employer conducts business” pursuant to 1997 INS guidance.
What the final rule does not address on this topic is when the clock starts on these three days. Recent guidance from DHS’ U.S. Citizenship and Immigration Services (USCIS) instructs employers not to count the day of hire as Day 1 in this calculation. Therefore, if an employee starts work on Monday, the third business day would be Thursday according to this recent interpretation. Immigration & Customs Enforcement (ICE), the enforcement branch of DHS, has recognized this policy, albeit not in any officially published guidance. Until there is consistent guidance relating to the three day clock, employers may want to take the more conservative approach of completing the Form I-9 within three days of hire, counting the first day of work as Day 1.
Paper or Plastic? or both?
Another point the final rule raises is that employers may use paper or electronic systems, or a combination of the two, for Form I-9 completion and storage. This provides an employer with flexibility to use an electronic Form I-9 system in certain company locations while maintaining paper records in other locations. In some instances, there may be remote hiring sites that do not have the logistics worked out for a company representative or agent to certify the genuine-ness of the documents being presented resources for an electronic Form I-9 system. Those sites could continue using paper Forms I-9, and the company has the choice as to whether those paper Forms I-9 ultimately get stored in the electronic system. For a variety of business and logistical reasons employers may elect to leave historic Forms I-9 for terminated employees in paper form and move forward electronically as they are able. There also instances where independent business units are ready for electronic records at varying times, and this new rule reinforces the concept that the record keeping need not be simultaneously electronic company-wide. Those paper forms could be filed and cataloged in cabinets or boxes according to the proper destruction date or they can be digitized, linked and calendared into HR software for electronic management at any time the employer chooses.
What is The Government Going to Want to See?
The final rule clarifies the audit trail requirements such that an electronic Form I-9 system need not include every time a Form I-9 is viewed or accessed, but it must track any:
creation,
completion,
alteration,
update, or
other modification
of a Form I-9 by recording:
the date of access,
the identity of the individual taking the action, and
the particular action taken.
Many of the leading electronic Form I-9 software tools are designed to create an audit trail compliant with these standards, but not all systems are created equally. Form I-9 tools included in packages designed for other human resources functions may not have this level of sophistication. Employers should ensure that any electronic system being used or considered meets this standard to ease the burden of creating such an audit trail manually.
Employers must ensure that their electronic Form I-9 storage method contains an indexing system that is comparable to a reasonable hardcopy filing system. This standard replaces the former regulation requiring that the system permit searches by any data element in the Form I-9. This deletion allows employers more flexibility in the cataloging of Form I-9 records. Again, the more advanced software systems will generally allow searches by any data field, including the employee name, birth date or Social Security Number. However, some employers may wish to store copies of all Form I-9s electronically in a simple .pdf format without using an electronic software for data entry. So long as these electronically saved images of the Forms I-9 are indexed according to one or more reasonable data fields, the employer will be compliant with this standard. The final rule also makes clear that these records may be stored in a separate Form I-9 file or as part of other employee records.
Can Paper Receipts Result in Carelessly Discarded Personal Data?
Lastly, DHS addressed the requirement that electronic Form I-9 systems be capable of printing a transaction record that must be given to the employee at the time of Form I-9 completion. Commentators in the interim period argued that this requirement fundamentally undermines the conversion to a paper-less system, whereby paper resources are saved and data is safely secured in a centralized, secured location. A transaction receipt akin to a copy of the Form I-9 itself circulates sensitive employee information that could be used for identify fraud. DHS argued that the receipt allows for confirmation of the accuracy of the record and is a proactive defense for employers if errors are later discovered on the form. It is interesting to note that DHS does not require that employees be given a receipt when a paper Form I-9 is completed, even though a paper Form I-9 is perhaps even more vulnerable to error as there are no data checks being performed.
DHS did modify the regulation in part, however, by only requiring that a receipt be provided when an employee requests it. In addition, the receipt need not be issued at the time of the transaction so long as it is provided within a reasonable time, and it may be transmitted rather than printed. Thus, the final rule greatly reduces the burden on employers and company resources to produce a receipt for every Form I-9 that is completed. When requested by the employee, the employer may also send the receipt electronically via secured email, rather than print a paper copy that could be carelessly discarded, misplaced or otherwise fall into the wrong hands. Because the final rule does not elaborate on the type of receipt that must be provided, employers may consider drafting a receipt for company use as an alternative to printing a copy of the Form I-9. A receipt that provides the employee name, date of completion and certification that all information entered was true and correct could satisfy the receipt rule without opening the door to identity fraud and scrutiny of company hiring practices. Like all Form I-9 practices, consistency is crucial, and any policies should be adopted company-wide for all employees.
The Department of Homeland Security (DHS) recently published final regulations that amend interim rules promulgated in June 2006 which govern electronic signatures and storage for employers who complete and retain the Form I-9 in an electronic format. The Final Rule affirms that employers can complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9). DHS also provides much needed clarification on certain technical requirements including more options for data compression, fewer storage requirements, and more options for storage systems, among others.
The follow is a summary of the key changes made by this Final Rule:
Employers must complete a Form I-9 within three business (not calendar) days. As we reported, USCIS recently provided clarification on when employers should start counting.
Employers may use paper, electronic systems, or a combination of paper and electronic systems. This clarifies that an employer may choose whether or not they want to create digital images or data of their historical paper I-9 forms when converting to an electronic I-9 system.
Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations, including accessibility and the ability to produce a reasonable facsimile or copy of the I-9.
Employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected.
Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.
The final rule also makes technical and conforming amendments to the regulations including the requirement that an electronic I-9 storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”
At first glance, these are welcomed changes that remove some of the roadblocks that may have kept employers from adopting an electronic I-9 system as part of their I-9 compliance program. Employers who are ready to switch to an electronic I-9 solution should make sure the system they adopt meets and exceeds the requirements in the Final Rule, such as Tracker I-9 .
More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9. For further guidance on the electronic signing and storage of the I-9 and to review the final rule in its entirety please visit the amendment as published in the Code of Federal Regulation.
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.
Recently, USCIS added an important update to their E-Verify website that attempts to clarify the definition of a “hire date” and the timing requirements for when employers are expected to complete Section 2 of the Form I-9 and when to E-Verify. In what can only be described as a sweeping change with widespread implications, USCIS states that employers are to complete the I-9 and run the E-verify case no later than three business days after an employee starts work for pay. Here’s the key passage (check out the full webpage here):
If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer). The first day the employee starts work for pay is not included in the three business day calculation. (emphasis added)
This issue of when to start counting the number of days an employer has to complete Section 2 and run the E-verify case has been a grey area subject to debate, especially since the Form I-9 and E-Verify literature use slightly different language to define the requirement, sometimes even within the same document as with the M-274, Handbook for Employers (see pages 5 and 6). Given these murky waters, many employers have taken the conservative approach and begin the count with the employee’s start date as day one for determining the third day of work. By comparison, under these new guidelines, USCIS has effectively extended the Section 2 and E-Verify deadline by a full business day.
While it’s generally good news to receive more leeway from regulators for meeting compliance deadlines, before making any changes to I-9 policies or procedures, such as allowing for an additional day to complete Section 2, employers are strongly encouraged to seek legal advice from informed counsel. Furthermore, there are still several unanswered questions that require DHS clarification, so it’s unlikely that this will be the last that we will hear on this important topic. For example, will Immigration and Customs Enforcement (ICE) issue concurring guidance? After all, ICE is the DHS agency charged with conducting I-9 audits that can result in significant penalties. According to unconfirmed sources, ICE has agreed to respect USCIS’ “Thursday Rule.” If this is true, we hope USCIS and ICE move quickly to harmonize their documentation and field training in a transparent and consistent manner, including updates to the M-274.
The USCIS update also provides instructions to employers for how to create an E-Verify case for a new employee once they have accepted an offer and completed Form I-9. Be warned that these directions are confusing. USCIS instructs employer to enter the current date in E-Verify if the Form I-9 contains a hire date that is forthcoming, since the E-Verify system won’t accept a future hire date. If the employee’s hire date is today or a previous date, enter the hire date on the Form I-9 in E-Verify. To summarize, USCIS published the following chart and admission on its website:
We realize the term “hire date” in E-Verify is confusing because its meaning can vary depending on:
When the employee starts work for pay
The date the case is created in E-Verify
Determining the E-Verify Hire Date
If you create the case in E-Verify:
Then the E-Verify hire date is:
Before the employee starts work for pay
The date you create the case in E-Verify
On or after the employee starts work for pay
The date the employee started work for pay
Regardless of which approach an employer takes, it’s always a best practice to be consistent and create a procedure for your company’s I-9/E-Verify policy and training materials.
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.
Today, a Privacy Impact Assessment (PIA) update for the E-Verify Program was made available by the Department of Homeland Security (DHS). The PIA update describes the additional information E-Verify will require from new registering employers, which will be sent to Dun & Bradstreet (D&B), a provider of information on businesses and corporations, and be compared against the D&B database to authenticate the employer is in fact a bona fide enterprise. According to the update, the additional requirements and corroboration by D&B is an effort to reduce the abuse of the E-Verify system by denying access to potentially unqualified or even fictitious employers.
Specifically, E-Verify will now request the following information for new registrations:
Doing Business as (DBA) name if applicable;
The DUNS number, a Dun & Bradstreet Identifier, if available. Not all employers will have a DUNS number, and other information such as address and phone number will be used to differentiate similar employees;
The Administrator’s Name – Links a company to its corporate administrator. This is the new name of the field formerly known as “Corporate Administrator”;
Parent Organization (if applicable); and
Optional: Marketing Channel (where the employer heard about E-Verify).
Depending upon the D&B results, E-Verify will either allow the new employer to register automatically, or attempt to verify the submitted business information by contacting the employer by phone or email. For example, if an individual is hiring a domestic employee and they wanted to use E-Verify, D&B would likely have no information on record for that particular individual employer. In this case D&B will probably return a no match and E-Verify would then contact the individual employer and confirm that they are in fact seeking to verify employment eligibility for an employee.
If E-Verify registration is denied, the employer can always attempt the registration process again in the future, bearing in mind that their information must be verified in order to complete the E-Verify registration process.
Once these new information requirements are in place, E-Verify will display a banner notice on its website. Additionally, when a company decides to register online, a list of required information will be provided so that an employer can determine whether or not it wants to register based on the requirements.
For more details, you can access the entire PIA update in PDF format from the DHS website here.
Last week, Immigration and Customs Enforcement (ICE) made public its 5-year strategic plan for FY 2010-14, which lays out the agency’s priorities on three homeland security missions: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws.
Looking more closely at the document, it becomes clear that one of ICE’s top objectives is to continue its worksite enforcement program and hold employers accountable for their hiring practices. The following excerpt from page five of the document details ICE’s stated efforts to address illegal employment and “Create a Culture of Employer Compliance:”
The opportunity to work in the United States motivates many to seek illegal entry. Therefore, enforcing the immigration-related employment laws is a critical component of border security. To create a culture of compliance among employers, ICE will use the following two-pronged strategy: (1) aggressive criminal and civil enforcement against those employers who knowingly violate the law; and (2) continued implementation of programs, such as E-Verify and ICE’s IMAGE program, to help employers comply. Criminal investigations will increasingly focus on employers who abuse and exploit workers or otherwise engage in egregious conduct. To support a meaningful civil audit program, ICE will hire additional auditors and centralize some auditing functions. Through the “I E-Verify” campaign, ICE will work with U.S. Citizenship and Immigration Services (USCIS) to increase public support for companies that use compliance tools. Finally, ICE will seek better statutory tools to address illegal employment.
In an atmosphere of increased worksite enforcement in the coming years, it will be more important than ever for employers to review their own internal hiring practices and procedures, including the completion and retention of the Form I-9. Tracker Corp has many freely available I-9 resources to get you started, while also introducing you to a more efficient and effective compliance tool.
The entire seven page strategic plan is available below.
Half of companies audited by DHS get fined $110,000 or more. If you're like most employers, 30-50% of your I-9 forms may have issues that put you at risk.
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The Department of Homeland Security (DHS) recently published final regulations that amend interim rules promulgated in June 2006 which govern electronic signatures and storage for employers who complete and retain the Form I-9 in an electronic format. The Final Rule affirms that employers can complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9). DHS also provides much needed clarification on certain technical requirements including more options for data compression, fewer storage requirements, and more options for storage systems, among others.
