Congress and the Executive Branch are frustrated with the entire immigration process in the United States. The Department of Homeland Security is working very hard to utilize advances in technology and data mining to develop a more effective I-9 system, as well the use of technology to better seal the borders. The E-Verify I-9 internet based confirmation system is being continually enhanced. In addition, biometric social security cards and other ideas are being advanced.
We are constantly finding that clients are out of compliance during our I-9 audits. Employer sanctions growing! We strongly recommend that employers re-double their efforts to make sure their current I-9’s conform to the law. Here is a list of top 10 tips to help you comply:
1. After an Employer makes a job offer and the applicant accepts the offer, request that the I-9 be filled out and examine the original documents that the applicant chooses to show as proof of work authorization. Once an offer has been accepted, an Employer does not need to wait until the first day of employment to I-9 the individual. However, the I-9 form should be done no later than the third day of hire.
2. Make sure the I-9 is completely and accurately filled out by both the new hire and your company. Take the time to carefully review the answer for each field of the form.
3. You are not required to keep copies of the documentation but if you do, keep the copies in the personnel folder. Do not staple the copies to the I-9 form. If you have questions on this call me.
4. Never pay cash to an individual who is not work authorized as a means of circumventing the I-9 regulations. Never classify an individual as an independent contractor in an attempt to circumvent the I-9 or other regulations.
5. Never accept expired documents from new hires. The only exception is a 90 day grace period for new hires that are U.S. Citizens or green card holders that have already applied for a replacement document – i.e. a replacement of a U.S. passport, state driver’s license etc.
6. The I-9 forms divides up the workforce into 4 categories – U.S. Citizens, U.S. Nationals (Samoa and Swain Island), permanent residents, and aliens authorized to work for a limited duration. Once verified, it is this latter category that must very carefully tracked since their work authorization will expire – i.e. work permits, H-1B petitions, TN workers, etc. Employers should not re-verify the I-9 of an existing U.S. Citizen, U.S. national or permanent resident employee merely because their documents have expired. Once hired, foreign national workers on temporary employment authorization must be carefully tracked.
7. Maintain the I-9 records for employees for 3 years from the date of termination. Keep all your I-9’s in binders – separate current employees from terminated employees. In the event of an I-9 audit by Immigration & Customs Enforcement (ICE), this will make it much easier to produce them within the 3 days requested by the agency. Scanning and making digital copies at the time of hire is also a good practice. Do not keep the I-9 in the employee’s HR file.
8. ICE recognizes a good faith exception to occasional I-9 errors that are minimal and inadvertent. When conducting an I-9 audit within your company, if you find errors or incomplete forms, we suggest you take a red pen and make any corrections. Do not destroy any evidence or alter any evidence. You may also annotate in the margin of the I-9 why you made a particular correction and date it, or you can attach an explanatory memo. In some cases, it is easier to fill out a brand new I-9 instead and staple it on top of the old one.
9. When in doubt, do not rely on the employee’s excuses as to why they are not authorized to work (offering excuses that the paperwork is “in process”).
10. Take the I-9 seriously. They are here to stay and the government is turning up the heat. The consequences of not complying are great – monetary fines, jail time, and asset forfeiture of the entire business.