E-Verify & I-9 News

[Editor’s Note: today’s post was written by guest blogger Robert F. Loughran, a Partner in FosterQuan, LLP and managing partner of its Austin office. He is board certified in immigration and nationality law by the Texas Board of Legal Specialization and has 20 years of experience representing and advising multinational companies on U.S. and global immigration law. This article was originally published in Texas Lawyer.]

In 2011, U.S. Immigration and Customs Enforcement and the U.S. Customs and Immigration Service issued thousands of notices of inspection and subpoenas. In 2012, enforcement efforts against employers will intensify.

In 2006, ICE created the position of forensic auditor. It greatly expanded their numbers in 2009, providing specialized skills for and adding uniformity to a process that special agents/criminal investigators had handled for the preceding 20 years. The number of permanently staffed ICE forensic auditor positions has grown, as has the number of worksite enforcement special agents. When the government staffs up to this degree, the level of enforcement rises with an internal momentum that should last for years.

Given this continuing immigration enforcement focus, in-house counsel need to ensure that their companies comply with the myriad of immigration laws and regulations. It’s helpful to break efforts up in the time before a subpoena arrives and the time after the government issues a notice of inspection or immigration-related subpoena.

In-house counsel can educate managers and the human resources department to avoid common mistakes in connection with Form I-9.

• Unnecessary reverification. No one needs to calendar the expiration date of a driver’s license or an alien resident card (a green card) for re-verification. In-house counsel should train relevant departments that asking an employee to re-establish continued employment eligibility following an identity document’s expiration date some years after employment and requiring presentation of additional documentation could open up an employer to charges and fines related to document abuse and potentially even discrimination and disparate treatment.

• Overzealous self-help. When performing self-audits, human resources staff sometimes write in, complete or correct section No. 1 of Form I-9. In-house counsel should warn HR that completing this section is entirely the responsibility of the employee, who must personally complete the employee attestation. Only the employee — not HR — should make fixes to section No. 1, lest the attestation be undermined.

• Going too far. More is not necessarily better. HR and managers frequently fill out too many columns regarding documents — filling in Form I-9 columns A, B and C. The legally correct approach is to fill out column A or B and C. Such errors indicate that the employer has required the prospective employee to present more forms of identification and/or employment eligibility documents than the law requires.

This is risky, and the legal department should explain why: Subjecting only people who appear to be minorities or born in other countries to excessive documentation requests could create a rebuttable presumption of discriminatory employment practices.

• Lack of objectivity. When bringing a new administrator or HR representative on board, some organizations do not think ahead about who is going to complete the Form I-9, witness the presentation of documents and attest that they are genuine. That can result in the new hire attesting to herself about her presentation of employment eligibility verification documents: “I attest that I have presented my employment eligibility verification documents to myself and they appear genuine and relate to the individual named (me).”

Handling an ICE Subpoena

Minimizing liability and correcting misguided HR practices before a government inquiry or investigation is the most effective method for reducing liability. Once ICE issues a subpoena, the opportunity for self-help and mitigation drops significantly.

Now is the time for the legal department to develop policies identifying the company’s first responders. These people will address any inquiries from unscheduled government visitors. Then, it’s time to ensure training for the receptionist.

Investigators normally will enter the worksite through the main entrance. Management should instruct the person who serves as visitors’ first point of contact to notify the first responder immediately when government officials arrive. It’s important to stress that that person refrain from discussing any company or employee information with the investigator.

Ideally, any paperwork the company files with the CIS will include only accurate, consistent information about the company. Files at the company should be centrally located, so that the first responder quickly and easily may access information for verification purposes. It will be helpful for the first responder to have payroll records, employee records showing date of hire and work location, and corporate financial information easily accessible.

In-house counsel should know that the posture of an employer who is not under investigation is radically different from the posture of an employer who has received a subpoena. Once ICE issues a subpoena, responding prudently is as important as the company’s ongoing business operations. It can become a considerable management and operations distraction, but it’s critical.

• Move quickly. Once the government issues a subpoena, the company must respond in final form within three days. The legal department needs an initial analysis of potential exposure within the days following the government’s appearance on its doorstep, so lawyers can decide whether the company’s strategy should be responsiveness or point-by-point contention.

• Just say “no.” ICE often attempts to outflank future challenges to its notices and subpoenas by securing permission to review company documents. It may be tempting for employees to grant that permission. The mere presence of ICE agents may intimidate receptionists and lower-level employees, leading those workers to hand over whatever the agents request — sometimes more.

But in-house counsel should inform all employees that all communication with the government goes through the legal department. Generally speaking, there is a three-day notice to locate, assemble, analyze, chart, photocopy and deliver documents. It is invaluable for the legal department to analyze existing liability before ICE begins building its theory of the case.

The legal department should teach employees at all levels that no one should attempt to have a friendly conversation with ICE agents. The company gains little and loses much when employees chit-chat about deficiencies, mistakes, practices, etc. It is human nature to attempt to establish good faith and lack of personal culpability; however, lack of malice aforethought and innocence are distinct concepts.

Government agents are trained to gather evidence of employer wrongdoing and to prepare a case to be forwarded to the U.S. attorney for potential prosecution. Private sector understandings of what is reasonable and appropriate may be very distinct from the expectations of a government investigator.

• Cooperate. Without being unnecessarily forthcoming and waiving rights of representation and response time frames, the legal department should coach first responders and other involved employees not to act cantankerous and combative with the agent during the investigation. Some company owners react with a sincere and emotional response that the government unfairly is singling them out and persecuting them in industries rife with violators.

But the reality is that the government has broad rights in immigration law. It eventually will get much, if not all, of what it seeks. In-house counsel should caution first responders and company leaders that it’s counterproductive to draw attention, potentially securing the lasting focus of an investigator, who has tremendous discretion and resources.

Compliance starts with comprehensive policies, a trained, well-informed staff and consistent practice.

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.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

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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:

1. creation,
2. completion,
3. alteration,
4. update, or
5. other modification

of a Form I-9 by recording:

1. the date of access,
2. the identity of the individual taking the action, and
3. 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.