I-9 & E Verify Presentation

E-VERIFY & I-9 COMPLIANCE: ARE YOU READY?

Ilana J. Drummond & Daniel C. Horne800.780.2008

www.jackson-hertogs.com

INTRODUCTION

Why worry about I-9 procedures now? The basics of I-9 compliance rules and

interplay with E-Verify Federal contractor (“FAR”) E-Verify rule Benefits of using electronic I-9 systems How to structure effective I-9 compliance

policies


WHEN DO YOU I-9?

Employee completes Sec. 1 on 1st day of work Employer completes Sec. 2 within 3rd day of

employment employee must provide original documents for

inspection Exceptions:

Employer may complete I-9 procedure on or before first day of hire Uniform policy Special group

Hires of 3 days or less must complete I-9 on first day


REVERIFICATION

Who and when? Section 1 lists an expiration date Section 2 documents indicate an expiration

date Employer should have a “tickler” system

based on expiration dates to flag reverification

Must reverify using current I-9 Form Can’t simply use Section 3 of prior form


Employer requests more or different documents than required by Form I-9 to establish identity and eligibility

Employer rejects valid documents Ex: Asking foreign sounding applicant to

show documents issued by USCIS All citizens and work authorized aliens are

protected against document abuse by IRCA One advantage for an electronic system

DOCUMENT ABUSE


Employers can maintain electronic I-9s Any electronic I-9s must be searchable and readily

viewable Full indexing of all data elements Ability to reproduce legible and readable hardcopies

think PDF images “reasonable controls” required to ensure integrity & accuracy

of system Employer cannot limit government’s ability to review and

reproduce

Commercial software products and legal services available for I-9 storage and completion

ELECTRONIC I-9 MAINTENANCE


HOW LONG TO KEEP THE I-9?

Employers must keep completed I-9s for at least 3 years after hire, or 1 year after termination of employment, whichever is later.

Examples: Employee is hired on 01/15/2006, quits on 02/02/2006. Must

keep I-9 until 01/15/2009 – 3 years after hire. Employee is hired on 01/15/2006, is laid off on 10/01/2008.

Must keep I-9 until 10/01/2009 – 1 year after termination.

You must have a valid I-9 for every active employee Exception: Grandfathered employees who were hired before

IRCA (11/6/1986)


Employee should complete Form I-9 on first day of work – no exceptions! Employee must complete Section 1 – cannot be completed by

Employer Completion of SSN is optional on I-9

unless employer is enrolled in E-Verify Employer should complete Section 2 when documents are

reviewed – no later than 3 days after employment begins Employer must provide employee with list of acceptable

documents and let employee choose documents If enrolled in E-Verify, identity document must include a photo

Keep paper I-9s separate from other personnel records Alphabetical index for I-9s that don’t expire Tickler index by date for I-9s that require re-verification I-9s for former employees should be kept separately until they may

be destroyed.

BEST PRACTICES: BASIC I-9 PROCESS


Decide whether company will keep copies of documents – apply consistent policy All copies must be maintained with the I-9 Forms If E-Verify enrolled, must maintain copies of all

Green Cards & EADs that employees present

Decide where to maintain I-9s for company: at worksite, HQ, or elsewhere?

Have regular I-9 training for all HR staff Conduct regular internal audits of I-9s

BEST PRACTICES: I-9 POLICIES


More than one person at company should check I-9s Having additional review ensures that one

person doesn’t create liability problem for entire organization.

Check I-9s that are being prepared for remote locations and worksites

BEST PRACTICES: I-9 POLICIES


• E-Verify is a DHS program that requests electronic verification of employment authorization at time of hire

• Employer signs MOU with DHS and complies with E-Verify rules, including agreement to:– DHS audit of I-9s– on-site inspection of I-9s and – interviews of employees– submission of electronic E-Verify request within

specified time limit – provides more work for HR• E-Verify still generates occasional erroneous “non-

confirmation” responses• E-Verify now mandatory for certain federal contractors

E-VERIFY PROGRAM


E-VERIFY DOES NOT REPLACE THE I-9 PROCESS

• E-Verify is not always consistent with I-9 process• E-Verify requires that the employee:

– have an SSN and – present a picture ID

• E-Verify participation creates a two-step process:• Complete the I-9; then• use that I-9 step to complete E-Verify

• By complying with E-Verify, is the employer requiring over documentation in the I-9 context?

• No, because its extra requirements derive from statute


• Allows representatives from DHS to visit the worksite at any time (with reasonable notice) to review I-9s and speak with employees handling I-9s

• Due process waived?• Also, MOU creates presumptions for enforcement under

IRCA• E-Verify query

– “Yes” response: • Presumption individual work authorized;

– If final non-confirmation, must terminate the employee or notify the USCIS that employer will continue employment

• Rebuttable presumption that the person lacked work authorization

MEMORANDUM OF UNDERSTANDING


• FAR is the “federal contractor” E-Verify rule• FAR E-Verify requirement now in effect• Will employer E-Verify entire work force?

– Or, will employer only query existing employees covered under federal contract and all new hires?

• Contract award date triggers 30-day countdown to enroll in E-Verify and 90-day countdown to query existing covered employees– New hires must be run through E-Verify within 3 days of

employment (unless no SSN then ASAP);– If opt to verify entire work force, then 180 day countdown to

query all employees starts on date of enrollment• must update registration if already registered

FEDERAL ACQUISITION REGULATION (FAR) RULE


• Requirements– Identification of covered contracts

• $100,000 or more for not off the shelf products• Subcontracts of $3000 or more

– Identification of covered current employees• Does not include “support” personnel

– Methods of tracking• E-Verify status of employees• New and/or expiring covered contracts• New assignments for current employees• Covered sub-contracts?

• Special union workforce concerns?– Some union contracts may prevent employer from using E-Verify

without violating contractual provisions

FAR RULE, CONTINUED…


• In response to new questions, USCIS is posting online updates to its E-Verify guidance for federal contractors:– guidance on transitioning from “covered

employee” to “total” enrollment– Use of expired US passports for US citizens

• Check in with USCIS E-Verify site for updates, (or subscribe to J&H newsletter)

E-VERIFY FAR RULE NEWS


• Work through your implementation and nonconfirmation processes before you enroll

• Establish an audit process for nonconfirmation tracking and resolution– there are currently no ticklers in the E-Verify system!– there are ticklers in 3rd party employment verification software

that handshakes with E-Verify (see Ombudsman’s report)

• Before enrolling in E-Verify– change your I-9 process and audit I-9s– train staff who will be responsible for I-9/E-Verify compliance– set up audit procedures and continue to periodically audit I-9s

OTHER CONSIDERATIONS…


• Always use current version of Form I-9• Latest Section 1 revision:

Citizen of the USNoncitizen national of the US Lawful permanent residentAlien authorized to work . . .

• Caveat: If E-Verify-enrolled, Social security number now required in Section 1 – If individual has no SSN (e.g., application pending):

• employer must complete the Form I-9, noting lack of SSN within 3 days and then run through E-verify when SSN issued

• instruction is in the FAQs

ISSUES: CURRENT FORM I-9


• Expired identity documents are no longer acceptable– E.g., expired US passport no longer acceptable

• Must continue to let employee decide what documents to present– However, if E-Verify-enrolled, document containing a

photo ID is mandatory– This means E-Verify-enrolled employer may be forced

to reject once-suitable employment verification documents

CHANGES TO ACCEPTABLE DOCUMENTS


QUESTIONS?

Documents

I-9 & E Verify Presentation