Dresser & Associates

Are Your I-9s All in Good Order?

The U.S. Immigration and Customs Enforcement (ICE) recently sent notices of inspection to a whopping 652 employers—warnings that investigators will descend on those workplaces to check I-9s and other hiring documents for all employees. ICE is seeking to ensure that each is authorized to work in the United States.

Audit your own records—and do it now.

One piece of good news is ICE’s change in emphasis away from workplace raids and toward (presumably better-controlled and less-aggressive) inspections focusing on documents rather than employees. But observers say that notices of inspection have gone out to more employers this year than in all of 2008. And, employers that escape criminal prosecution may still incur civil fines if ICE believes they knew some of their workers were unauthorized. A good initial preparation is to ensure you have all I-9s in one place, because if ICE conducts an inspection, you will have only 72 hours to round up each and every one of them for presentation at a local ICE office. Filing paper copies in the scattered locations where your employees work, therefore, could present a big problem.

A firm that helps employers verify new hires and maintain valid documents is HireRight. We spoke with Darlene Baker, the firm’s liaison with the Department of Homeland Security’s (DHS) E-Verify system, seeking more advice for employers.

Her first response was that HR should review every I-9 for completeness and accuracy. Each employee concerned should be contacted immediately to obtain missing information or new authorizations. These corrections can be made on the original form, so long as the HR manager initials all changes. But there’s one kind of error, Baker noted, that can’t be corrected: You must complete an I-9 within 3 days of a new hire’s joining your organization, so if it wasn’t done until 5 days after the person started, you can’t change it.

Should you use E-Verify?

Many experts note that confirming the match between new employees’ names and Social Security numbers is a prudent step to take in preparation for an ICE inspection, since that is the mode of verification endorsed by DHS. And, Baker reports that the majority of the firm’s large clients do use the system. Further, beginning September 8, 2009, all federal contractors and subcontractors are required to use it. But some immigration attorneys caution that the system is not for everyone: Enrolling can be cumbersome, and employees’ personal data become much more vulnerable. The databases involved are also subject to error at a rate, says Baker, ranging from 2.5 percent to 4 percent.

A better system has been proposed: Called the New Employee Verification Act, the bill is still in Congress and unlikely to be passed this year, but business favors it because (a) it would fund error corrections of the databases, and (b) it aligns with new-hire systems already in use in all 50 states.

Compliance tips. With ICE preparing to chase down work authorizations on thousands of employees across the country, the spotlight is on your new-hire documentation. Here are additional compliance tips from Baker and others:

  • As we mentioned earlier, pull all your I-9s into a central location so they’ll be accessible quickly; don’t store them at distributed locations.
  • Ensure you have an I-9 for every single employee.
  • Consider purchasing an electronic system to track and manage I-9s. (For example, HireRight’s “I-9 Solution” will check each I-9 for completion and data matching. It also creates e-mail alerts for HR regarding authorization documents that are about to expire, and it generates management reports.)
  • If you are in a high-enforcement industry such as agriculture or near-border hospitality, you’d be wise to adopt E-Verify, despite its potential drawbacks.
  • In deciding whether to use E-Verify, assess the risks (of identity theft, for example) and of surprise visits and DHS data mining, as well as the administrative burden of participation.
  • If you do use E-Verify, retain the system’s printout with the I-9 to which it’s related.
  • Regardless of what systems you adopt, commit to periodic (at least annual) self-audits of I-9s and accompanying documentation. Find and correct mistakes before ICE does.
  • Remember that as long as you can show a thorough, good-faith effort to be in compliance, ICE may well overlook a limited number of incorrectible errors—such as forms completed more than 3 days after employees began work. In the experience of Baker and some immigration lawyers, the agency “is usually reasonable and works with the company.”
  • ICE has said that if you are inspected several times with good results, the agency may give you a 3-year moratorium on investigations.

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