The I-9: Just a Simple Little Form - Yeah Right!

Back on July 12th I wrote a post called. Feds Getting Heavy on I-9 Enforcement: So Dot Those I's and Cross Those T's where I talked about some of the very nasty results of not properly filing, recording, and storing I-9s. By this time in our working lives there should be no one who has not seen an I-9. If you have started another job since 1986 you have had to complete this form. So you may ask "What is the big deal it is just a simple form." Well the answer to that is that it is not so simple. There have been multiple iterations of the form. (TIP: Always keep a copy of the instructions that accompany the form you used. Since the types of ID that apply have changed you should be able to show an auditor that at that time you were in compliance.) This form is so simple (not!) that the USCIS put out a 65 page handbook on how to complete the form. Yes you read that correctly, 65 pages. You can find this Handbook for Employers: Instructions for Completing Form I-9 (Employment Eligibility Verification Form) by click the underlined title.

On July 22, 2010 U.S. Immigration and Customs Enforcement (ICE) published a final rule that allows employers and recruiters or referrers for a fee, who are obligated to retain the Form I-9, to sign this form electronically and retain it in an electronic format. This final rule amends and updates an interim rule published on June 15, 2006. It allows you to even have I-9s saved in paper or electronic formats or a combination ot the two. But before you go "great I can scan all these forms from now on" make sure you understand the requirements. You can also fill out a form electronically on the USCIS website. However, there are some hoops you have to jump through to make sure it is correctly done. If it is not done correctly then you will be found in violation of the law.

ICE and USCIS also cleared up a couple of other issues. First was the "three day rule". ICE/USCIS said this is three "workdays" and the three days does not include the first day worked. You can do the paperwork ahead of time.

For some people there has been some confusion about storage. The question is how long do I have to keep these forms. Straight from the handbook comes this statement. "Forms I-9 must be stored for 3 years after the date you hire an employee, or 1 year after the date you or the employee terminates employment, whichever is later. For example, if an employee retires from your company after 15 years, you will need to store his or her Form I-9 for a total of 16 years." This maybe one of the advantages of electronic storage.

The also answered some questions on E-verify and the three day rule. You can find guidance for that by visiting here. E-Verify is a bit more complex than the I-9. The guidebook for it is can be found by clicking on The User Manual for Employers. It is only 78 pages. Yep only 78 pages. Happy reading.

I would suggest you download both of these guides. If you read the post I wrote earlier (link is above) you know that doing this correctly is critical. You screw this stuff up you can be fined, or charged with a felony and go to jail and have your personal property seized. No one wants that. Crap they take enough already without you even doing anything wrong.  

Feds Getting Heavy on I-9 Enforcement: So Dot Those I's and Cross Those T's

I have written several times on the new emphasis that the Feds, specifically the USDOL, the EEOC, the OFCCP, and ICE of Homeland Security, are putting on clamping down on employers. Well I picked up my copy of HRMagazine today and read the column "Federal Enforcers Wield Big Sticks". Writer Beth Mirza provides more ammunition to what I have been saying. She is talking in particular about the I-9 form. She quotes attorney Mary Pivec, of Keller and Heckman LLP as saying employers are "carrying extreme liability" in their I-9 forms because aggressive agents are "looking for people to prosecute."

According to Mirza and Pivec the volume of I-9 audits will be stepped up considerably in 2010 and , get this, THEY ARE NOT SEEKING CIVIL REMEDIES, THEY USING CRIMINAL ENFORCEMENT AGAINST EMPLOYERS! This means business owners can have their PERSONAL PROPERTY SEIZED and middle managers (aka HR) can be charged with THE FELONIES OF CONSPIRACY AND HARBORING.

That is not the only arena. Wage and Hour class action suits are on the rise, OSHA is getting very aggressive and seeking criminal remedies and a friend told me today that federal contractors are now being told by the OFCCP that the will be found guilty of discrimination if they source candidates through social media sites since the majority of social media users are white. I have not confirmed the last bit of information, but I will let you know if I do. But the other stuff is fact.

So your HOUSE had better be in order! Unless you think you look good in an orange or blue jumpsuit.

No Wonder this Job is So Hard: Contradictory Messages From the Government

Being in Human Resources today is no "bed of roses." (For my non-English speaking readers, this idiom means "a comfortable situation". Though I have often wondered since roses also have thorns.) Anyway, I digress. The fact is that being in HR is tough, especially for the compliance side of the house. Part of this difficulty comes from the contradictory messages the Federal government puts out. On the one hand we have laws that prohibit illegal, or in today's parlance "undocumented", aliens from holding jobs in the United States. This the 1986 Immigration Reform and Control Act for those of you unsure. This law created that form, the I-9, that so many companies screw up on. In addition to that, we have a whole set of laws designed to deal with businesses that do business with the government, aka Federal Contractors, that prohibit any use of illegal labor. These regulations require that federal contractors even verify legal status by using the E-verify system. So you would think the Federal government would be dead set against ANY promotion of illegal workers.

Yet, in this video, U.S. Secretary of Labor Hilda Solis, announces that even if you are "undocumented" you are to be afforded protection of US laws. Some groups are saying she is violating the law. I don't think that technically correct, but the message certainly is contradictory to what other aspects of the Federal Government (USCIS) and the OFCCP (which is part of DOL) say to employers.


By the way, I dicussed the We Can Help site that this video appears on back on April 6th, when I discussed US Department of Labor: It's War! And Employers Are The Enemy . This video shows definatively that We Can Help is not an employer friendly program.

Government to Check I-9s in a Nationwide Audit

According to an article on SHRM's website (sorry you have to be a member to read this one) U.S. Immigration and Customs Enforcement (ICE) issued notices to 652 businesses that they will be audited. In all of 2008 they only issued 503. So obviously they are stepping up activity. The agency is trying to build criminal cases against employers before they conduct raids. According to the SHRM article:

"As part of its shift in strategy, ICE is going after employers instead of undocumented workers, according to Mira Mdivani, an immigration attorney with The Mdivani Law Firm in Overland Park, Kan., in a July 7 interview."

Apparently the targets of the investigations, which are widespread, were gathered from No-Match letter data, use of E-Verify, union instigation and other "investigative measures." The agency is being secretive. According to the article "...ICE officials “refused to tell us how to define substantive violations of I-9s versus technical violations. We thought we knew, but they won’t tell us.” And ICE wouldn’t disclose the guidelines that are being used to fine employers, ...."

Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. provided SHRM with the following list of items that ICE might be looking for on an audit.

• Original I-9s. Forms I-9 must be retained for three years after the date of hire or one year after the date of termination, whichever period is longer.
• A spreadsheet listing alphabetically all current and terminated employees with hire and termination dates in electronic form Word or Excel, non-PDF, including the names, Social Security numbers and dates of birth of each employee.
• Copies of quarterly wage and hour reports and/or payroll data for all employees—current and terminated—covering the period of inspection, as well as quarterly tax statements.
• Business information, including the employer identification number, taxpayer identification number, owner’s Social Security number, owner’s contact information (e.g., address, information, phone numbers and e-mail addresses), articles of incorporation (if applicable) and copies of business licenses.
• Copies of Social Security no-match letters.
• A copy of any I-9 policy.
• The name and responsibility of those who complete I-9 forms.
• The date the business was established, form of the business, where it is incorporated and its revenue.
• The department or job titles of employees.
• Quarterly unemployment insurance reports with the state or quarterly returns for Federal Income Contributions Act taxes.
  

According to the article and the attorneys HR needs to own this process. My experience has been that too often forms are incomplete because HR does not own the process. And since this is a law that can result in jail sentences great care needs to be taken in completing the information on this form.

The advice in the article is "Designate a lead person to spearhead immigration compliance at the company and adopt an immigration compliance policy that incorporates recommended ICE best practices that make sense for your company, she recommended, and become thoroughly familiar with ICE’s I-9 handbook. Conduct annual immigration audits in cooperation with legal and provide annual training, keeping the big picture clearly in focus as enforcement strategies and laws change. That way, instead of scrambling after receiving an I-9 audit notice, Mdivani said, a company will be prepared."

So, depending on what your company does, what your history has been like and how you have things set up you may have a lot of work that needs to be done. But I hope this makes you sit up and pay attention.

Lessons for HR in the Geithner Confirmation Hearings

How many of you have paid attention to the lessons for HR in the Timothy Geithner confirmation hearings? Oops, I can hear you now "Who the heck is Timothy Geithner?" (A gold star to any who knows before they read the next sentence.) Timothy Geithner is Barak Obama's nominee to head the Treasury Department for the Obama administration. He has made headlines because he has made what his supporters call "honest mistakes." These "honest mistakes" are causing him and others some heartburn and everyone in HR should take a note because these are mistakes that would cause you some heartburn too.

What were his mistakes? He failed to pay self-employment taxes for period of time in which he was an independent contractor. Taxes to the tune of $34,000 plus. This HR lesson is to make sure you and anyone you have as a contractor understand the importance of properly paying taxes. If someone doesn't and they get hit with a big tax bill they may try to foist that reponsibility off on you the employer. If they can show that they were improperly classified as an IC then guess who gets to pay the bill, plus penalities? Here is a link to the IRS Independent Contractor Rules.

The second "honest mistake" he made was allowing an immigrant to work for him as a housekeeper without having the proper, up-to-date work permits. Geithner never completed and I-9, just wrote the document numbers down in a calendar and did not pay attention to the expiration dates. His housekeeper worked beyond the expiration date of her visa. So the lesson in this is to make sure you are aware of all the expiration dates of the visas of people you have working for you on a visa. It is simple to do, just put it in a calendar or a spreadsheet, if you don't have a HRIS that will track it.

Just wanted to show you that there are day-t0-day HR lessons for you in the news. Kris Dunn of The HR Capitalist often pulls his from the sports world. So read, pay attention, and go beyond just the words on the paper/screen.

BTW, here is a link to an article on Geithner if you are interested in reading more.

Now fess up! Who really knew who he was?

The photo credit is the Associated Press.

Social Security Number "No-Match" , I-9 and Homeland Security: Someone Explain This One

The Department of Justice filed an appeal, on behalf of the Department of Homeland Security, on the injunction issued by a San Francisco federal judge on the implementation of the "No-Match" Rule. Michael Chertoff, Secretary of the Department of Homeland Security issued a statement on December 5th regarding the No-Match Rule stating that " I believe that the No-Match Rule is a major step forward in preventing employment of illegal migrants. Contrary to the ACLU’s incorrect statements, the rule is not harmful to legal workers. DHS is not abandoning it."

He further stated: "Employers receive a No-Match letter from the Social Security Administration when an employee’s name does not match the social security number it has on file. Sometimes there is an innocent explanation for this discrepancy, such as a clerical error. But sometimes the discrepancy reflects the fact that the employee in question is an illegal alien. When employers receive such No-Match letters, they are on notice that the employees in question may not be authorized to work."

He goes on further to state how important the No-Match letters on Social Security Numbers is to the security of The United States. I happen to agree with him but PLEASE, SOMEONE EXPLAIN TO ME, if this is so important why is it that THE SOCIAL SECURITY NUMBER ON THE NEW I-9 IS VOLUNTARY! Go figure.