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.

E-Verify: Imperfect But Improving

According to an independent evaluation done in 2008, and reported in the April 2010 issue of HR Magazine, E-Verify, the background checking system of the Department of Homeland Security, "...is much more effective than the Form I-9 verfications process used by employers not using E-Verify." This is actually good news. First reports of the system reported that it was badly marred.

The research group Westat, Inc. detailed the results of their study in this 338 page report. The study found that 94% of the workers whose employment verifications were run through the system were identified correctly as eligible for employment in the United States. The remaining 6% did not have proper paperwork, however, 3% of them were still given authorization. Much of these errors were due to those workers having fraudulant or stolen identities. The effort in the future will be to cut down on this fraud.

Employers using the E-Verify system do need to realize that there are flaws in the system and need to document their efforts to use and verify a worker's legal right to work in the US. Have your documentation to prove that you did your best just in case a worker gets busted and fails a closer look.

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.