E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Katie Nokes Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

So you’ve taken the plunge and enrolled in E-Verify. Here are best practice tips to avoid the less-obvious pitfalls of E-Verify use.

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: today’s post is brought to you by guest blogger Katie Nokes Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

E-Verify is the federal government’s current foray into electronic verification of employment authorization of US workers that functions as a complement to— not a replacement for — the traditional paper-based Form I-9 employment verification system. Over the past few years, many employers have found themselves in a “sink or swim” situation as they have been forced into this otherwise optional program by laws mandating their use. Others have voluntarily enrolled in the program. The remaining majority are now finding themselves teetering at the edge wondering whether or not to take the plunge.

E-Verify: Who Should Jump Right In

Businesses required by law should enroll in E-Verify and structure their participation to comply with applicable laws and the terms of the program. Currently many employers are required by state or local law to enroll in E-Verify, and all signs indicate that this trend will continue. Certain federal contractors are also required to use E-Verify. Further, multi-state corporations may consider enrolling nationally to avoid facing the moving target of state-by-state compliance and the associated burden as new state laws are passed. Employers who have previously been the subject of an I-9 audit and related fines should also strongly consider enrolling in the program.

E-Verify: Who Should Stay on Shore

E-Verify use has its drawbacks. These include employer-borne costs of training personnel and allocating resources to correctly administer the program, the addition of an extra step in the hiring process, and the risk of a “false positive” for a new hire that may raise an unnecessary red flag that requires corrective action. For companies with limited HR resources or who would face significant burdens in regularly accessing the online program not required or otherwise inclined to enroll, the costs will not likely justify the benefits. Some employers simply do not want to participate in the “voluntary” program, and can elect this approach unless otherwise required to enroll.

E-Verify: Who Should Test the Waters

As the program is currently structured, employers have options in how they use E-Verify, including limiting use for new hires at only one (or a handful) of hiring sites. Enrolling in the program for use at a single hiring location, for example, does not trigger a nation-wide E-Verify use requirement for all hiring sites of a given company. While E-Verify is imperfect, the federal government has put significant resources into the program and more and more states are imposing E-Verify requirements. Odds are good that most employers will need to at least consider participation at some point in the future.

Enrolling in E-Verify on a limited basis is a good option for employers with the necessary resources to properly administer the program who may otherwise be on the fence. Choosing to participate at one hiring site provides an opportunity to gain familiarity with the program and complete the necessary training and registration on the employer’s own timeline. E-Verify experience may also provide a competitive edge when competing for business. Companies are increasingly adding employment verification compliance provisions to service contracts, which may include current (or perhaps future) E-Verify use. Putting “a toe in the water” provides companies negotiating such contracts an advantage over companies that are not familiar with or currently contemplating at least limited use of the program.

No matter their current E-Verify enrollment status, all US employers should continue to monitor E-Verify related developments to acquire a general understanding of program requirements and any pertinent compliance deadlines.

Disclaimer: The content of this website is for information purposes only and should not be construed as legal advice or a legal opinion on any specific facts or circumstances, nor does it create attorney-client privilege. This blog 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: today’s post was written by our guest blogger Melinda McAfee, Esq., Vice President – Legal, Abercrombie & Fitch, Tracker I-9 client since 2010.]

Nothing tests your company’s best practices like an ICE audit. Any company that has been through a large scale ICE audit will come out of the experience with lessons learned. Converting these lessons learned into best practices can and will help you survive future ICE audits relatively unscathed. Below are a few of the “best practices” lessons learned that any large retailer or similar employer can benefit from.

Best Practice #1: Develop and Implement a Regular Audit Process
The most important lesson that any employer can learn from going through an ICE audit is the importance of a regular audit process for I-9 compliance. This is especially true with respect to electronic I-9s, which are susceptible to the vagaries of technology. The risk when errors occur is much higher with electronic I-9s where technological problems can affect hundreds or thousands of I-9s at once, and could subject a Company who has acted in good faith to disproportionate fines. Developing an audit program that regularly reviews both the behind the scenes working of your electronic I-9 system (i.e., database storage, stability and security) and the front end product (i.e., correct completion of the I-9) is essential.

Best Practice #2: Make it Fail Safe
There are numerous error types that are possible on an I-9 form, any one of which can result in a fine from an ICE audit. At a minimum, any electronic I-9 system must provide automatic error-checking. Ideally, the system should prevent I-9s from being submitted with invalid input or incomplete information. For example, your electronic I-9 software should prohibit the form from being submitted without all the required fields completed. Other error protections include prohibiting the entry of expired documents, date and number formatting checks to prevent typographical errors, and protections to prevent accidental over-documentation and subsequent accusations of discriminatory I-9 practices.

Best Practice #3: Keep it Simple
I-9 and E-Verify processing can be high risk, but is usually a low priority for retail managers, whose focus is, and should be, on running the business. Along with the fail safe protections discussed above, the electronic I-9 system and interface should be as simple to use as possible. Managers need to be able to do the following without becoming confused or distracted by too many extraneous features in your electronic I-9 system:

1. Create an I-9 record
2. See a list of every record in process, and
3. See the employees who need to be E-Verified.

Avoid putting extensive reporting and searching tools on your local interface. Make sure that the instructions and screens that local managers see are clear and concise, walking them step by step through the process. Save the bells and whistles for your Corporate Office HR professionals and auditors.

Best Practice #4: An Integrated Solution
If your Company uses an applicant tracking system (ATS), it is possible to integrate the electronic I-9 software with your ATS. This can provide another fail safe to ensure that I-9s are completed at or prior to the hire process, requiring the I-9 to be completed before the individual can hit the sales floor. For retailers with a large part-time workforce that may not work every day, this can ensure compliance with the mandatory I-9 completion time frame. Integrating the electronic I-9 system with the ATS also helps “Keep It Simple” because Section 1 of the I-9 can be pre-populated with information provided by the employee during the application process, requiring only the employee’s review, correction and signature.

Likewise, using Single Sign On simplifies the electronic I-9 system and makes security easier to control. Managers can sign on to the Point of Sale system and be authenticated at sign on, which will provide them access to the electronic I-9 system, ATS and the electronic hiring system. This prevents the manager from having to reauthenticate multiple times in order to process a new hire, complete an I-9 and initiate E-Verify.

Best Practice #5: Portable Authentication for Substitute Managers
Large retailers in cities with multiple stores often need to borrow or exchange managers from one worksite to another to cover vacations, sick days and turnover. This requires an I-9 system that is not only easy to use, but also enables portability of system access. Creating temporary access roles for a new user every time a manager goes to a new store creates a burden on IT staff, creates login and security complexities, and risks managers being unable to log into and use the system. By integrating your I-9 software with your other systems, the I-9 software can automatically permit access for managers to the specific stores at which they are scheduled to work, and then disable that access when they transfer to a different location.

Best Practice #6: Support Seasonal and Under-Age-18 Hiring
Retailers, food service and hospitality industries thrive on hiring seasonal, temporary and under-age-18 employees. The electronic I-9 system used by such employers must simplify the I-9 and E-Verify complexities inherent for these types of employees. For example, if an employee is working for three days or less, the three-day grace period to sign Section 2 does not apply and you cannot accept a receipt in lieu of an original Section 2 document. Your electronic I-9 system should automatically enforce compliance with these special rules.

By keeping these six best practices in mind, multi-worksite organizations in the retail or similar industries can help ensure the best compliance with I-9 and E-Verify and increase their chances of surviving an ICE audit with minimal impact to the business.

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: today’s video post is brought to you by guest blogger Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

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.

Share this with your network:

[Editor’s Note: today’s post is brought to you by guest blogger Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

1. Am I complying with applicable laws requiring E-Verify use?

E-Verify is an online service administered by the federal government that allows employers to run information about new hires through Department of Homeland Security and the Social Security Administration databases to attempt to verify work authorization.

In the absence of comprehensive federal immigration reform, and particularly in the face of high levels of unemployment, states and local governments are stepping hard into the employment verification debate. A number of states, counties and municipalities have passed laws that mandate use of the otherwise voluntary E-Verify program.

E-Verify laws warrant a close and careful look by all employers to determine when, if and how E-Verify mandates may affect them. Employers already using E-Verify should confirm they are making any necessary updates to their program use to meet state requirements (for example, adding hiring sites in affected states, if they are currently only using E-Verify in other locations).

Currently only certain federal contractors are required to use E-Verify under federal law. More expansive legislation that would require E-Verify use by all employers has been introduced in both the House and the Senate, but such federal requirements are not currently in effect.

2. Does my company have a contract that includes an E-Verify provision?

Employers should be monitoring all federal contractors for an E-Verify clause. Additionally, state contractors are also increasingly required to use the program, and private employers are now including immigration compliance provisions to the terms of service contracts that include required use of E-Verify now or in the future. Employers should review all contracts for any language that may require their use of the program.

3. If my company will be required to use E-Verify, what steps should we be taking now to prepare?

Employers should note any upcoming deadlines for required use of E-Verify. A company facing an upcoming E-Verify requirement should familiarize itself with the E-Verify Memorandum of Understanding, notice and employer requirements of the program, and make internal decisions and designations about how the program will be administered and by whom. Before the internal start date of E-Verify use, a company should plan to train appropriate human resource professionals and update its employment verification compliance policy to reference and incorporate its use of E-Verify.

4. Should my company voluntarily enroll in E-Verify to avoid the burden of monitoring local and state developments?

As states and local governments continue to pass E-Verify laws, employers must closely and regularly monitor specific requirements where they do business. Multi-state employers may consider nation-wide voluntary participation in the program to avoid the burden of complying with varying state requirements, depending on the employer’s views relating to the program and ability to satisfy E-Verify requirements.

5. How well does my company currently comply with employment verification requirements?

Most companies are aware of the federal requirement that companies verify the employment authorization of new hires by completing Form I-9. Employers should evaluate current employment verification compliance practices and consider a self-audit to confirm the employer’s Form I-9s are properly prepared and retained.

E-Verify is a supplement to, not a replacement for, the current I-9 verification system. Employers currently enrolled in E-Verify must still fulfill all obligatory employment verification requirements under current federal law, such as completing and retaining Form I-9. Employers considering enrolling in E-Verify should confirm they are currently meeting all federal employment verification requirements before undertaking additional responsibilities and requirements relating to 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.

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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Tis the season for seasonal workers, and Black Friday is just the beginning. With many organizations even advertising for walk-in positions, HR professionals need to know the correct way to process I-9 forms and E-Verify for seasonal or temporary hires.

The tips below, as well as other government guidelines for how to complete the Form I-9, can be found in the The Handbook for Employers Instructions for Completing Form I-9 (Rev. 06/01/2011), also known as the M-274, published by the United States Citizenship and Immigration Services (USCIS) . It is strongly recommended that all HR staff or managers who complete I-9s should, at a minimum, familiarize themselves with this handbook.

Don’t take temporary worker I-9s for granted.
The first thing to keep in mind is to treat I-9s and E-Verify as seriously for temporary employees as you do for permanent, long-term employees. Remember: even though an employee may be only temporary or seasonal, your organization will have to live with that I-9 form for a minimum of three years, and Immigration and Customs Enforcement can fine you up to $1,100 per I-9 form in error.

Complete Section 2 on the first day for temps working 3 days or less.
The 3-day grace period to sign Section 2 does not apply for employees hired to work for less than 3 days. Normally you have until the 3rd business day after hiring to complete Section 2 of the I-9, but if the employee is only hired to work 3 days or less, you must complete Section 2 on the first day.

Only accept an original Section 2 document for temps working 3 days or less.
Unlike longer-term employees, if an employee is hired to work for 3 days or less, the employer must only accept an original Section 2 document. While you may only accept original documents for temps working 3 days or less, be careful to avoid discrimination allegations by not specifying which document types the employee can present. Provide them with the full list of A, B and C options.

Follow consistent I-9 practices for re-hiring temporary or seasonal employees.
Always be consistent, even across worksites. For example, if you re-hire an employee within 3 years of the initial date of hire, you can either complete a new Form I-9, or update Section 3 of the original Form I-9. Whichever you do for one, do for all.

E-Verify all seasonal and temporary employees where/when E-Verify laws apply.
You must E-verify all employees working at a worksite that participates in E-Verify, even if the employee is seasonal or temporary. If your organization is a federal contractor and the temp employee is working under the contract, or if state or local E-Verify laws apply to your worksite, you must E-Verify all affected employees, even if they work for 3 days or less.

Stay Timely and Consistent to Stay in Compliance.
Whether using paper I-9 forms, electronic I-9 software or a combination of both, remember to I-9 and E-Verify temporary employees with the same care and consistency as you do all your employees. This is especially true if your company hires temporary and seasonal workers in large numbers, because such companies draw the most attention for potential auditing by U.S. Immigration and Customs Enforcement (ICE).

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: today’s post is brought to you by guest blogger Bruce Buchanan, partner-in-charge of immigration practice, King & Ballow, LLP.]

Tennessee is one of 18 states that have passed legislation or have an executive order implementing E-Verify. However, the Tennessee Lawful Employment Act, which will become effective on January 1, 2012, is unique in that the use of E-Verify is not mandatory. Under the new law, an employer may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees.

You will note the documents above are redundant of documentation needed for I-9 verification. The only real difference is the requirement to maintain a copy of the identification document. Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.

A second provision in the law involves a “non-employee” providing labor or services to an employer. A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.” If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification. However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a “safe harbor” and cannot be found to have violated the law by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or identification if the employee is found to be working without employment authorization.

The Tennessee Lawful Employment Act will be phased in as follows: Employers with 500 or more employees and governmental entities must comply by January 1, 2012; employers with 200 to 499 employees by July 1, 2012; and employers with six to 199 employees by January 1, 2013. Employers with five or fewer employees are exempt from the law.

Any lawful resident of Tennessee or a federal agency employee may file a complaint with the Tennessee Department of Labor and Workforce Development, which will investigate such complaints. This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer’s employment of an unauthorized worker.

The penalties for the new law are: First offense – $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; second offense – $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and third offense – $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained

Most states that have passed E-Verify require it for all employers. Why is Tennessee different? In my opinion, two primary factors are the strength and the diversity of the Chamber of Commerce and the level of tourism in Tennessee. The Chamber of Commerce has opposed mandatory E-Verify. Further, Tennessee’s Chamber includes a lot of foreign-based employers, such as Nissan’s North American headquarters in the Nashville area, Volkswagen’s new manufacturing facility near Chattanooga and Wacker Chemie AG in east Tennessee.

The second apparent factor is tourism. Again, Tennessee strives to be a friendly state toward domestic and foreign tourists, and E-Verify can be viewed as unfriendly to an immigrant population. Interestingly, the only other state which just passed non-mandatory E-Verify is Louisiana, a state heavily reliant upon tourism.

After passage of this law in 2011 without mandatory use of E-Verify, the Tea Party supporters in Tennessee felt like the Republicans had abandoned them in favor of the Chamber of Commerce. The Tea Party supporters vowed to seek mandatory E-Verify in 2012. Only time will tell if they will be successful.

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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The Department of Homeland Security (DHS) has published the long-awaited final rule on the use of E-Verify by federal contractors and subcontractors, which will take effect starting Jan. 15, 2009. The substance of the rule is mostly the same as what was initially proposed in June 2008, although the DHS has limited its overall use by stipulating that it will only apply to federal contracts with a period of performance longer than 120 days and value above $100,000. As before, it will not apply to contracts for commercial off-the-shelf items (those offered to the government without modification, in the same form in which they are sold in the marketplace).

Those employers affected by the rule will need to use E-Verify for all new hires as well as existing employees who will directly perform work under the federal contract. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. Within 90 days from the date of enrollment, contractors must begin to initiate verification queries for employees already on staff who will be working on the contract and begin using the system to verify newly hired employees.

The following is a summary of some of the main points of the final rule:

• The final rule amends the Federal Acquisition Regulation and requires Federal contractors to use E-Verify for all new hires as well as existing employees who will directly perform work under the federal contract.
• The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).
• The rule only covers subcontractors if a prime contract includes the clause.  For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.
• When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date.
• Within 90 days from the date of enrollment, contractors must begin to initiate verification queries for employees already on staff who will be working on the contract and begin using the system to verify newly hired employees.
• Institutions of higher education, state and local governments, and Indian tribes will be only be required to E-verify existing or new employees assigned to work under a federal contract; they do not have to use E-Verify to verify the work eligibility of all new hires.
• The rule applies only to employees working in the United States, which is currently defined to include the fifty States and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

The United States Citizenship and Immigration Services (USCIS) has posted an FAQ and a Fact Sheet which provides more information. The entire rule is available for viewing on the Federal Register Web site in PDF format.

As of October 1, 2008, Federal contractors and all other employers are still prohibited from checking an existing employee through E-Verify. This prohibition, however, may be lifted for employers with U.S. Government contracts if the Bush Administration’s proposal to make the use of E-Verify mandatory for Federal contractors is adopted without modifications. The Administration wants to apply this rule not only to future employees of Federal contractors but also to their current employees. As of now, however, all employers are prohibited from running existing employees through E-Verify.

An advisory for employers posted on the USCIS website notes that:

“the proposed FAR rule is subject to comment from the public, consideration of these comments by the government, and subsequent issuance of a final rule in the Federal Register with a stated effective date.  Until the FAR rule is published in the Federal Register as a final rule, existing program rules apply to all employers using the program.  Under the proposed FAR rule, only those employers that are awarded a contract with the Federal Government that includes the contract term required by the final FAR rule may run existing employees through E-Verify, and then, only if such employees work on the covered contract.”

Because many  U.S. employers were confused by the proposed rule, the USCIS website advisory was revised to clearly state that “at this time, the E-Verify program remains a voluntary program for employers, including Federal contractors.” The Administration, however, continues to encourage all employers, including Federal contractors, to enroll in E-Verify now to verify the employment eligibility of new hires.

Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website.

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.