E-Verify & I-9 News

[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 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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Here’s the latest addition to our continuing series of educational videos:
Form I-9 Best Practices for Remotely Hired Employees

How to avoid the 5 common mistakes when completing the Form I-9 for remote hires. Tracker Corp’s Brian Fancher explains the best way to work with a Notary Public and an employer representative for onboarding employees who are unable to visit your Human Resources dept. to complete the I-9 form.

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:

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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Introducing our latest Tracker I-9 video, explaining the Five Best Practices to Follow When Completing the Form I-9 and E-Verify for Under-Age 18 or Disabled Employees.

Click this link to watch the video:

U.S. employers are required by law to complete Form I-9 when verifying the employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status. Part of the process is the examination of documents presented by employees to establish their identity and to prove that they are authorized to work. The employer must physically examine the original documents (not a photocopy).

Employers are understandably concerned about making mistakes while completing Form I-9. According to a Customer Guide posted on the United States Citizenship and Immigration Services (USCIS) website, an employer is not required to know with absolute certainty whether a document establishing identity and work eligibility is genuine or false. After examining the original document, employers must, however, make a good-faith determination that the document:

• Appears to relate to the employee;
• Appears to be genuine; and
• Is included in the Lists of Acceptable Documents on Form I-9.

There is an additional concern on the part of employers about making decisions that could amount to illegal employment discrimination. The USCIS guide warns that “rejecting a document that later proves to be
genuine could result in a violation of the anti-discrimination provisions of immigration law, so employers should guard against being overzealous in their inspection of documents the employee presents.”

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.

U.S. employers are required by law to verify employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status.

A newly-redesigned Form I-9 Customer Guide from the United States Citizenship and Immigration Services (USCIS) offers a number of useful tips to employers seeking answers to employment eligibility verification questions and can be downloaded from the USCIS website.

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

•   U.S. employers are required by law to verify the employment authorization of all workers they hire on or after November 6, 1986, for employment in the United States, regardless of the workers’ immigration status.

• Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States, or who fail to comply with employment authorization verification requirements, may face civil and, in some cases, criminal penalties.

• Form I-9, Employment Eligibility Verification, must be completed for each newly hired employee, including U.S. citizens, permanent residents, and temporary foreign workers, to demonstrate the employer’s compliance with the law and the employee’s work authorization.

• The employee must complete Section 1, Employee Information and Verification, of Form I-9. The employee must attest that he or she is a U.S. citizen or national, a lawful permanent resident, or is otherwise authorized to work for the employer in the United States. Each newly hired employee (an employee who has accepted the position) should complete and sign Section 1 no later than the first day of employment, regardless of his or her immigration status.

• The employer is obligated, after physically examining the documents presented by the employee, to complete Section 2, Employer Review and Verification, and Section 3, Updating and Reverification (if applicable), of the I-9 form. Employers must complete and sign Section 2 of Form I-9 within 3 business days of the employee’s first day of employment. If the employment relationship will last less than 3 days, then the employer must verify work authorization and complete Section 2 no later than the first day of employment.

• The employee may provide the documents they choose from those listed on the most recent Lists of Acceptable Documents, which can be found on the I-9 form.

• An employer cannot tell an employee which documents to present for Form I-9 purposes.

• An employee who has been issued temporary work authorization must produce proof of continued work authorization no later than the expiration date.

• Employers should complete Section 3 of Form I-9 when updating and reverifying the employment authorization of an employee whose previous valid authorization has expired.

• Rejecting a document that later proves to be genuine could result in a violation of the anti-discrimination provisions of immigration law, so employers should guard against being overzealous in their inspection of documents the employee presents.

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 Tracker I-9 team will periodically post on our News Blog tips for employers who may want additional information about Form I-9 and E-Verify. Today’s tip is on avoiding discrimination in recruiting, hiring, and processing I-9 forms.

When employers do not meet all the Form I-9 requirements, miss important deadlines, and/or take actions viewed as discriminatory, they place themselves at risk of government sanctions and potential employment discrimination lawsuits.  It is therefore essential for employers to be continuously informed about frequent changes in the laws and regulations, especially as they pertain to the documents that employers may accept from newly hired employees during employment verification.

Employers should treat employees equally when recruiting and hiring, and when verifying employment eligibility and completing Form I-9.  Specifically, employers should note the following:

1. Employers should never set different employment eligibility verification standards or require that employees present different documents because of their national origin and citizenship status.  For example, employers cannot demand that non-U.S. citizens present DHS-issued documents; employees must be allowed to choose the documents they will produce from the lists of acceptable Form I-9 documents.  Another example: both citizens and work-authorized foreign nationals may produce a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment eligibility.

 

2. Employers should never request employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.

 

3. Employers should never refuse to accept a document—or refuse to hire an individual—because a document has a future expiration date.

 

4. Employers should never request that an employee present a new unexpired employment authorization document (EAD) during reverification if he or she presented an EAD during the initial verification.  For reverification, each employee must be allowed to present any document either from List A or from List C.  Refugees and asylees may possess EADs, but they are authorized to work based on their status and may possess other documents that prove work authorization from List A or List C to show upon reverification, such as an unrestricted Social Security card.

 

5. Employers should never limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract.

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.