I-9 & E-VERIFY COMPLIANCEHR FLORIDA 2011GLENN M. COOPER, ESQ.
Focus on Enforcement• In the absence of comprehensive immigration reform, the immigration agency is focusing its resources on employer compliance.• Criminal penalties, forfeitures and civil fines!• As recently as January 20, 2011, ICE Director John Morton announced the creation of a new employment compliance center in Crystal City, VA. Sole mission is to facilitate I-9 audits for companies of all sizes.
Enforcement (con’t)• How does it happen? Typically, ICE will issue a notice of inspection (via mail or served in person). Employer provided 72 hours to produce I-9s.• By the time employer receives notice, it’s often too late to remedy errors. Need to plan ahead.
Setting up an Effective I-9 Process.• Who needs an I-9? All employees hired after November 6, 1986 (date of IRCA). - includes payroll employees - contractors if directly paid/supervised by employer Does NOT include volunteers Does NOT include independent contractors (but…be sure to include language in contract to cover I-9 liability)
Rehires• Do not need to re-I-9 a rehire IF the employee has a properly completed I-9 on file, which is less than 3 years old and the original I-9 does not contain employment authorization expiration dates.
How to Set up an Effective I-9Process1. Appoint an I-9 captain. Captain should be well-trained on I-9 issues – and approve all I-9s completed by outer office managers.2. Be sure to verify all I-9s in person. Do not accept fax or email scan copies of documents.3. Be sure that every section is completed – do not leave blanks.
Best Practices (con’t)• Be sure I-9 is completed timely: Section 1 to be completed by employee on day 1 of employment. Documents verified/Section 2 completed by day 3 of employment. Sign and date each section.• Do NOT ask for specific documents – allow employee to choose from list. KEEP COPIES, but BE CONSISTENT!• Put correct documents in proper columns (List A, B, C) – make sure all documents are unexpired at time of verification.
Best Practices (con’t)• Establish an automated tickler system with reminders of upcoming expiration dates. Best to set for 6 months, 3 months and remind employee.• Reverify timely. Use Section 3 to update documents. Do not reverify identity docs that are expiring (driver’s license, etc.)• Do NOT reverify permanent residents, refugees or asylees.
Best Practices (con’t)• Keep I-9 records separate and apart from personnel files – avoid a fishing expedition.• Destroy I-9 records when eligible. Follow the 3 year/1 year rule. [3 years after I-9 created or 1 year from termination date, whichever is later]. For ease of use, purge 3 years after term date.
Minimize Potential Penalties• Good faith defense.• Do internal audits every 6 months – correct deficiencies and date w/ current date.• Enlist outside counsel to perform annual audit.• Maintain a current list of employees with hire/term dates, and cross check for I-9s.
Avoid Document Abuse• Never ask an employee for a specific document – always allow them to choose from list.• Do not reject any document that appears facially valid. Don’t play detective.• Do not conduct I-9 process in advance of hire.
What about E-Verify?• E-Verify is a partnership between DHS and SSA.• Voluntary participation unless fed contractor.• Using E-Verify creates a rebuttable presumption that your company has not “knowingly hired an unlawful worker” – but participation does not create a safe harbor.
E-Verify (con’t)• Decide whether or not your company will use E-Verify. Be consistent with every new hire.• If you choose to use E-Verify – review MOU, and post notice to employees.• Be aware that there are significant mis-matches in E-Verify, creating difficulties.
E-Verify (con’t)• Under E-Verify, complete I-9 form first, then run employee info. If mis- match, allow employee 8 business days to remedy problem.• What if they can’t remedy problem in 8 days? No clear guidance… employers must balance immigration risks against potential employment discrimination claim. Call counsel.
IMAGE program• IMAGE is a joint program between gov’t and private sector to improve employer self-compliance.• Under IMAGE, employers receive education and training from ICE.• Must use E-Verify and submit to ICE I-9 audit to become “IMAGE certified.”• Does not provide safe harbor – but will be a mitigating factor in fines/penalties.
Bottom Line• Most audits/raids are not random – typically triggered by complaint from disgruntled employee.• Be prepared. Stay ahead of the compliance curve.• Have a response plan for the unexpected…what to do when the gov’t shows up.