Dangerous I-9, E-Verify Mistakes to Avoid

Roy Maurer By Roy Maurer June 18, 2013

CHICAGO--An increasing number of government worksite compliance audits and stricter EVerify laws and regulations have made employment eligibility immigration compliance a critical function for human resource departments across the U.S.

U.S. employers have been deputized since 1986 to make sure that they employ a legal workforce. Completing a Form I9 Employment Eligibility Verification for each employee enables employers to document that they have met their obligations for verifying the identity and work authorization of their employees.

Studies have found that a typical organization will often have errors on more than half of their I9 forms. This can lead to steep penalties, the revocation of a business license, debarment for federal contractors, and discrimination and other damage claims from applicants.

“Since 2008, we’ve seen a 600 percent increase in I-9 random and targeted audits,” said John Fay, vice president and general counsel for LawLogix Group, addressing attendees of a packed Tuesday concurrent session at the Society for Human Resource Management (SHRM) Annual Conference & Exposition.

Fay addressed five of the most common and dangerous mistakes that arise when using I-9 forms and E-Verify, the government’s electronic employment verification system.

Denying You Have an I-9 Problem

So many employers out there think it’s just another form or that they’ll never be audited, Fay said. “But with the increasing use of E-Verify and the uptick in audits, your potential liability can be quite expansive. You really need to pay attention to this,” he said.

Some common I-9 mistakes include:

Completing the form after the required deadlines. The new hire must complete Section 1 on or before the first day. Section 2 must be completed by the employer within three days of the start date.

Using the wrong version. The recently released effective version of the form has 3/8/13 on it.

Not ensuring that the employee signs the form. “An I-9 without an employee signature is no I-9 at all, according to Immigration and Customs Enforcement (ICE),” Fay said.

Waiting for ICE to Show Up

You can fix your I-9 problems before enforcers arrive at your door, Fay said. “If you review your I-9s now, spot errors and fix them, ICE will treat that effort a lot more favorably than if you don’t.”

Treating Employees Differently

The anti-discrimination provision of the Immigration and Nationality Act prohibits the use of unfair practices during the I-9 process. In general, employers may not request more or different documents than are required to establish a worker’s identity and eligibility to work in the United States and may not reject documents that appear to be reasonably genuine. For example, employers may not require applicants who appear “foreign” to produce green cards. The employee gets to choose which of the acceptable Form I-9 documents to present.

Improperly Retaining I-9 Forms

Employers must retain an employee’s completed Form I-9 for as long as the individual works for the employer. Once the individual’s employment has terminated, the employer must determine how long after termination the Form I-9 must be retained—either three years after the date of hire or one year after the date employment is terminated, whichever is later. Forms I-9 can be retained either on paper or electronically.

Not Treating E-Verify Seriously

Without a doubt, you are prone to more audits if you use E-Verify, Fay said. Some E-Verify best practices include:

Centralizing operational control of the E-Verify chain.

Understanding the nuances between I-9 and E-Verify requirements.

Tracking state law. “It’s kind of crazy out there, with all the different state laws,” he said.

Implementing a tentative nonconfirmation policy. If you receive a tentative nonconfirmation notice, “you want to make sure you meet with the employee, go over everything so that the employee understands what’s going on, and print out the notice itself. ICE is tracking that.”

Roy Maurer is an online editor/manager for SHRM.



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