Tips on Verification Compliance

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The Form I-9 (Employment Eligibility Verification) issued by U.S. Citizenship and Immigration Services must be maintained by all employers. Since November 1986, every new hire, whether a U.S. citizen or a foreign national, must complete section 1 on the first day of employment, attesting to the individual’s identity and employment eligibility. Within the first three days of hire, employers must complete section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document numbers on the form, and certifying by signing under penalty of perjury that the documents examined appear to be genuine and relate to the employee. Employers must also refrain, however, from engaging in prohibited acts of discrimination against new hires and applicants for employment, such as basing employment decisions on citizenship or national origin status, or insisting that employees provide only specific types of identity documents or work permits.

Recently, the federal government has used the avenue of criminal law enforcement to prosecute employer violations of immigration laws. Prudent employers should follow a set of steps to confirm that their compliance obligations under the immigration laws are fulfilled. This is especially important in the post-Enron era when Sarbanes-Oxley Act compliance and damage to corporate reputations are of heightened concern. This checklist can serve as a starting point for employer immigration compliance:

Current I-9s

1. As long as no formal enforcement proceedings are pending or likely, employers should remove from their files and discard original I-9s no longer subject to the I-9 “retention rule” (I-9s may be destroyed after three years from the date of hire or one year from the date of termination, whichever is later).
2. Employers should perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices.
3. As a measure of good-faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction. Changes should be made in a separate color ink on the existing form, but employers should provide a new I-9 and keep the old one (if it is no longer subject to the retention rule) only if there is sufficient space.
4. Employers should establish a reminder system for the timely reverification of employment eligibility for foreign employees who have time-limited work permission.
5. Employers should take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the agency’s own data (the so-called SSA “no-match letter”). An employer acts appropriately in this situation by checking the employer’s records, providing the employee an opportunity to seek an official correction or, if unable to verify and reconcile the discrepancy, considering (on advice of counsel) whether termination of employment is required. For details on the time requirements for such compliance efforts, see www.a257.g.akamaitech.net.
6. If numerous no-match letters are received, employers should consider reverifying the entire workforce but should take precautions to avoid unlawful immigration-related employment discrimination.
7. Employers should decide whether to:
• Copy or refrain from copying original documents of identity and employment eligibility. On the one hand, copying creates a paper trail, making it easier for the employer and the government to review prior compliance actions and for the employer to make corrections to I-9s, if required. On the other, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.
• Maintain I-9s and required records in paper, microfiche, or electronic format. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology reduces paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government’s investigative burden.
• Participate in the new U.S. Citizenship and Immigration Enforcement (ICE) programs, electronic “Basic Pilot” verification and/or “IMAGE.” The Basic Pilot allows an employer to check the employment eligibility of foreign nationals (new hires only) through the government’s immigration database. The signing of a Memorandum of Understanding is required. IMAGE is the ICE Mutual Agreement between Government and Employers, a plan for voluntary self-policing and the submission of annual immigration audits first by the government and then by qualified third-party entities. See http://www.ice.gov/partners/opaimage.

Future Hires

1. Set up a system for handling future I-9s.
2. Complete Section 1 of the I-9 on the first day of work for all new hires.
3. Complete the rest of the I-9 within three days of the first day of work.
4. Consider pre-completing the Employer’s Business Name and Address in Section 2 and pre-fill Employer Authorized Representative’s Name and Title if the same person always completes the Employer Certification.
5. Do not accept copies of work or identity documents.
6. Make sure all new hires complete I-9s in person before a company official (to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions).

Company Practices

1. Engage in regular training for employees handling I-9 completion.
2. Establish an I-9 routine and follow it consistently for every employee.
3. Create a system for tracking dates of hire and terminations of employment to purge I-9s from current storage to minimize liability (assuming no actual or threatened government investigation exists or is likely).
4. Consider establishing policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits.

See Mark A. Ivener, A Law Corporation for help in complying with the new no-match rules and other verification requirements.