An Employer's Guide to I-9 and E-Verify

Immigration attorneys Bruce E. Buchanan and Greg Siskind have authored a new edition of their guide to employment verification and compliance at an apropos time. Their one-stop shop for information on navigating the latest Form I-9, the E-Verify process, and relevant anti-discrimination laws and regulations comes as worksite immigration enforcement is poised to explode.

President Donald Trump's administration has signaled that worksite enforcement actions, including I-9 audits, will quadruple in 2018. U.S. Immigration and Customs Enforcement (ICE) is proposing to hire 10,000 more officers, many of whom will focus on I-9 audits. Employers that are not in compliance could face large civil fines and criminal penalties, loss of their business licenses, or debarment from government contracts.

The 2017 edition of The I-9 and E-Verify Handbook (Alan House Publishing, 2017) provides an in-depth reference guide for employers verifying that individuals are legally authorized to work in the United States—something every employer in the country is responsible for, regardless of whether it hires foreign workers.

The book includes the most commonly asked questions about completing the Form I-9, recordkeeping practices, electronic I-9 systems, penalties for violations and how to use E-Verify, the government's online verification system.

Some of the critical issues the book addresses include:

An employer's Form I-9 obligations. These include having the employee complete Section 1 of the form; reviewing the required identity and employment authorization documents; properly completing Section 2 of the form; signing and dating it; retaining it for the required period; properly reverifying employees; and making the forms available for inspection.

Rules for independent contractors. Employees working for a contractor are verified by the contractor, not the client employer. However, the authors point out that ICE has targeted employers that it believes use contracting firms to hire unauthorized workers.  

Being presented with invalid documents. This is tricky for employers. On the one hand, HR professionals are not expected to be document experts. On the other hand, accepting an obviously phony document could be penalized. The rule is that employers must accept documents that "reasonably appear on their face to be genuine." But overzealous inspection could lead to a discrimination charge.

Reverifying a returning employee. Boomerang employees are not required to complete a new Form I-9, but if that is not done, the employee's work authorization needs to be reverified if the formerly listed work authorization has expired.

Throwing out Forms I-9. The form must be retained for terminated employees for at least three years from the hire date or for at least one year since the termination date, whichever comes later.

Receiving a tip from a worker that a co-worker is unauthorized. Acting on tips alone may leave the employer vulnerable to a discrimination claim and is not advised. However, a 1999 DOL opinion letter noted that an employer may be in violation if it receives a Social Security no-match letter for a worker that had been the subject of a previous tip indicating that he or she was ineligible to work.

The handbook also goes beyond the employment verification context and outlines scenarios involving foreign workers in layoffs, mergers and acquisitions; provides a reference for state employment immigration laws; and lists basic information on permanent and temporary visas.

The book is organized in an easy-to-scan, question-and-answer format with an array of illustrations, checklists and sample documents.

Roy Maurer is an online writer/editor for SHRM who focuses on talent acquisition.