Immigration Compliance for Employers: How to Protect the Company

Given the current heightened enforcement environment employers should develop policies and procedures to ensure they stay in compliance. To start with, employers should be using the new version of the Employment Eligibility Form I 9 (dated 02/02/09). Employers should also make sure they are using the updated instructions which go with the new employment eligibility verification form since there have been some significant changes in recent years.

Conduct Self-Audits to Ensure Compliance

One of the most valuable compliance steps an employer can take is to conduct annual employment eligibility self-audits. This audit could be preformed by trained in-house human resources personnel, or by counsel. In this way the company can confirm that it has an I-9 for everyone on the payroll records, and that it is observing the required retention policies. I-9 forms must be kept for 3 years form date of hire, or 1 year after termination, whichever is longer. Employment I-9s that don't fall within this time frame should be destroyed. When I-9s are destroyed a notation should be made in the file so that there is no doubt as to whether an I-9 was ever done in the first place. The internal audit will enable the company to make sure every I-9 is signed and dated where it needs to be, and that all items have been completed. If an item is not applicable, it is best to mark it as not applicable, or in some way to indicate that the item was left blank intentionally.

Maintain Documentation

There is no requirement under federal law to keep copies of the documents which the worker submits to the employer for I-9 verification purposes, but it can be a good policy to do so as long as the policy is applied consistently. For example, the employer should not just keep copies of documents submitted by people who look foreign. It is also important to only keep copies of the specific documents needed for verification purposes.

It can be desirable to keep the I-9 forms separate and apart from the employee personnel files. This may make the forms better accessible in the event of a government audit, and will avoid an unnecessary disclosure of private information.

Errors in Paperwork

Depending on the size of the company an I-9 audit may involve the review of hundreds or even thousands of forms. Given the numbers and the many ways mistakes that can be made on the I-9 it is pretty much a given that errors will be found during the audit. So what is the best way to make corrections? Rule number one is to never back date the form. To a government examiner this may appear to be a sign of bad faith and tampering. For the same reason it is best to not use white out. Just draw a single line through the incorrect information. If information is being added, the person adding that information should initial and date the new information. He or she can also make a notation such as "corrected during self-audit", and include a date and the person's initials or signature. A common error involves the employer making corrections on section 1 of the I-9. Remember that section 1 of the form is for the employee, and corrections to that section should be made by the employee, not the employer. All other errors and omissions can be corrected by the employer. If a reverification is necessary for a previously completed I-9, the employer may line through any outdated information and initial and date any updated information, or alternatively, the employer may fill out a new I-9.

Follow Up on Anything Suspect

If during the audit it is noticed that some of the supporting documents appear not to be legitimate then the employer should follow up. While the employer is not expected to be a documents detective, the regulations require that when the I-9 is initially executed the documents must appear reasonably related to the person presenting them and must appear on their face to be genuine. This is a case by case review and counsel may need to be involved depending on the situation.

The Best Protection is to Be Proactive

Since immigration enforcement in the workplace is still a relatively new trend, many companies take a reactionary approach to the issue, rather than being proactive and putting an immigration compliance plan in place. If the company has a written compliance plan in place it is naturally more likely to be consistently applied. Depending on the number of workers it can be very helpful to identify someone to be the company immigration compliance officer. The compliance officer can be instrumental in developing best practices such as a re-verification tickler system, and providing training to those working with the I-9s. The company immigration compliance policy should be integrated into the general personnel policies, and the employee manual or handbook could include a statement confirming that the company has a strict policy to abide by all immigration laws, and that it only employs those authorized to work in the US. If the company has a termination checklist it could include as a possible reason for termination the failure to truthfully complete an I-9.

Using E-Verify

As part of its immigration compliance plan the company should consider whether it should participate in the government compliance plan known as E-verify, formerly called Basic Pilot. E-verify is an internet based program operated by the USCIS in partnership with the Social Security Administration. The program provides an automatic link to federal data bases to help employers determine work eligibility for new hires, and also to confirm their social security numbers. To participate in e-verify the company must sign off on an electronic Memorandum of Agreement which sets forth the various rights and responsibilities of the company and the government. As part of the agreement the company must grant the government certain access to its records so that the government can monitor the company's use of the program.

Next Page: Special Independent Contractor Issues

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