Expert: Audit To Ensure I-9 Compliance

By Allen Smith, J.D. Oct 31, 2007

CHICAGO—Employers shouldn’t wait for the receipt of warning letters from the Department of Homeland Security to audit their I-9 compliance, according to Krishna McVey, SPHR and an attorney with Michelin North America in Greenville, S.C. She told other in-house attorneys at the Association of Corporate Counsel’s 25th annual conference on Oct. 29, 2007, that they instead should periodically audit compliance.

“Periodically pull the documents and look at them,” she recommended. McVey noted that employers have to keep I-9s records for three years after an employee’s date of hire or a year past termination, whichever is longer.

Employers technically aren’t required by federal law to keep copies of the documents (e.g., passports, drivers’ licenses) that new hires presented to show their identification and employability, but McVey said that most do. “If you do keep the documents, keep them the same way for everybody,” she said, not just employees whose last names aren’t Anglo-Saxon.

McVey recommended other best practices for employers to follow to reduce their risk of violating the Immigration Reform and Control Act (IRCA) and criminal law prohibitions on the employment of illegal immigrants, including:

  • Knowing the I-9 obligations and following them.
  • Completing I-9s within three days.
  • Reverifying I-9s for any employees whose work eligibility will expire in advance of the expiration date.
  • Planning in advance how to deal with I-9 documents that don’t look real.
  • Preparing for the possibility of worksite enforcement action and a contingency plan if a significant percentage of the workforce is arrested in U.S. Immigration and Customs Enforcement (ICE) raids on the employers’ premises.

ICE isn’t just going after the most egregious violators of the law anymore, McVey cautioned. The number of criminal arrests by ICE against employers rose from 24 in 1999 to 716 in 2006. As of July 31 of this year there already were 742 criminal arrests, including the arrests of HR professionals.

Downsides of Electronic Option

Electronic verification is an option to the I-9 process, but McVey emphasized that the use of the government’s E-Verify does not shield employers from the possibility of criminal prosecution.

She noted that Swift & Co. had used the Basic Pilot Program, E-Verify’s predecessor, prior to ICE’s Dec. 12, 2006, raids, which resulted in the arrest of 10 percent of Swift’s workforce. McVey said she thought Swift’s participation in the federal government’s electronic verification program “absolutely” put the company in the spotlight. So, she recommended that employers rely on the I-9 process for now, rather than “waving red flags.”

However, McVey reminded conference attendees that the Bush administration had wanted to require all employers to use E-Verify and still is seeking to require all federal contractors to use it. Approximately 19,000 employers currently use E-Verify. That number would rise to 200,000 if federal contractors also had to use it.

“There is concern about whether the computers could handle that increase in use,” McVey remarked. If the program becomes mandatory, some expect its costs may shift to employers, she added.

Colorado requires that state and local contractors use E-Verify, while Illinois prohibits employers from using E-Verify. There have been 170 immigration laws enacted this year alone in 41 states, McVey noted, saying, “It is almost impossible to keep up with all of the legislation.”

She remarked that “the whole state picture is such a mess. The federal government will have to say, ‘This is a federal issue that we will govern and the states need to get out of.’”

Until then, employers need to make sure their own houses are in order and comply with state and federal law, even though federal immigration laws “put the squeeze on employers not to step over the line” either in the direction of employing illegal immigrants or unlawfully discriminating, according to McVey.

IRCA prohibits employers from discriminating based on national origin, in addition to Title VII’s prohibition on such discrimination by employers with 15 or more employees, McVey noted. IRCA also prohibits all employers with four or more employees from discriminating based on citizenship or perceived immigration status.

Allen Smith, J.D., is SHRM’s manager of workplace law content.


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