E-Verify to Delete Records Older Than 10 Years

Since the passage of the Immigration Reform and Control Act of 1986, businesses have been mandated to verify the employment eligibility of new hires, and depending on each businesses state location and specific circumstances, they may be required to use E-Verify as well. Earlier this year, U.S. Citizenship and Immigration Services announced that as of June 4, 2021, it will dispose of E-Verify records dated before or on December 31, 2010. Although this practice of disposing ten-year-old records is routine, it is important for companies who may need information from E-Verify to gather it before the deadline of June 4th.

How the E-Verify Program Works

Before an employer can use E-Verify, they are required to complete a Form I-9 for the employee. This form consists of three primary sections, including:

  • Section 1: Asks employees to fill out requested personal informational no later than their first day on the job. Employers should review and ensure the form has been completed correctly.
  • Section 2: This section focuses on employment work eligibility verification. Employees must submit approved identification documents to employers. From there, employers are charged with examining the documents for authenticity. This middle section of the form should be completed within the employees first three days.
  • Section 3: The last section is reserved primarily for rehire and reverification. This is needed in the event that an employee changes their name, their work authorization expires, or they are rehired within three years of the date on the original form.

Much of the information gathered from the form will also be used to open up an E-Verify case. If using digital I-9 compliance software, it should be capable of autopopulating E-Verify fields with information from the Form I-9 so that retyping similar data is unnecessary. An E-Verify case should typically be completed by the third business day from the employee’s first day.

After an E-Verify case is opened and completed, the program then analyzes the information provided by the employer to data kept on file by government agencies for the purposes of confirming the employee’s work eligibility. The speed with which E-Verify case results are provided back to an employer can vary depending on individual circumstances.

While not all employers are required to enroll in the E-Verify program, many do for the sole purpose of alleviating some of the pressure of authenticating employees’ work eligibility. It may also be helpful in protecting against identity and document fraud.

E-Verify Records Disposal Practices

Although the USCIS made an announcement that it would be getting rid of E-Verify records dated before or on December 31, 2010, this is not a new practice. For many years U.S. Citizenship and Immigration Services have been following National Archives and Records Administration’s (NARA) protocol regarding the retention and disposal of records. The practice of disposing of these E-Verify records is in place in large part to avoid unnecessary risk related to privacy and security.

Why Businesses Should Care About the June 2021 Deadline to Pull Information from E-Verify

Businesses using E-Verify must print and file or record an E-Verify case verification number that corresponds to an employee’s Form I-9 Employment Eligibility Verification. To that end, a business may match and keep the historic records report with the correct corresponding I-9 forms.

Some companies may find it beneficial to keep this information in the instance that they are the subject of an I-9 audit or are being investigated. If an employee’s work eligibility is in question, having that documentation can be key. Without it, there may not be enough data for a company to prove the said employee was authorized for work by E-Verify at the time of hire.

Employers who require information on downloading historic records reports in E-Verify can find detailed instructions on the program’s website. Some information that can be found in a historic records report may include:

  • Original date and case number
  • Company name and location
  • Employee name and date of initial resolution, additional resolution, and final status
  • Information regarding case closure

Why It Can Pay Off to Enlist I-9 Compliance Help

Federal mandates regarding the verification of an employee’s work eligibility can be very specific and deadline oriented. The Form I-9 has three separate sections, each with their own guidelines regarding timelines for completion. In addition to that, employers must also be aware of impending deadlines to download historic records reports before they are disposed of.

With so many checklists and deadlines looming that can affect a company’s I-9 compliance status, it can be wise to enlist help. A reputable provider can help ensure that employers meet guidelines and are doing everything they can to be I-9 compliant from start to finish.

Choose a company that intimately understands employment verification from a legal perspective and all the complexities that come with obtaining and maintaining I-9 compliance. This provider must understand and keep abreast of federal and state laws regarding I-9 compliance.

Look for comprehensive I-9 compliance help that includes:

  • Form I-9 assistance
  • E-Verify assistance
  • Digital I-9 compliance software

As E-Verify deletes records older than ten years, it is a good reminder for employers to remember and observe the importance of those records’ role in potentially maintaining I-9 compliance.

I-9 Compliance Is A Must, Looking Over Your Shoulder Is Optional

Immigration law can be confusing for companies to successfully navigate. Fortunately, even though federal law says Form I-9 compliance is a must, looking over your shoulder is optional if you can have confidence in your process. Those concerned with their company’s I-9 compliance should consider adding digital I-9 compliance software to their process for added peace of mind.

The Form I-9 and Why It Has to Be Completed

The Form I-9 was established by the passage of the Immigration Reform and Control Act of 1986. This federal mandate requires employers to complete this form for employees at the time of hire to both verify their identity and eligibility to work in the U.S.

Since completing the Form I-9 is federal law, failing to do so is considered a violation of that statute. If your company is audited and is found to be missing I-9 Forms or have incomplete forms, you will be in violation of the law and could face a range of punitive consequences for each individual offense.

Completing the Form I-9 for new hires is not a suggestion, it is the law.

How the Form I-9 Is Set Up

The Form I-9 itself can look fairly simple, with three main sections to be completed, but don’t let that deceive you because the details matter. The form identifies specific guidelines and deadlines which must be observed for it to be valid.

There are three key sections of the Form I-9:

  1. Section One: This first section is designed primarily to gather personal information about an employee and should be completed by the employee by their first day of employment. In addition to providing accurate information, employees must also sign the document vouching for its validity. The employer’s responsibility for this section is to see that the employee has completed it properly and completely.
  2. Section Two: The middle section of the form is a little more complicated due to the deadline of having it completed within three days of an employee’s first day on the job. This section has an employee provide their employer with Form I-9 approved identification documents. At this point, employers must examine each of these documents in good faith for authenticity, which can in turn affect the employee’s work eligibility.
  3. Section Three: This last section is in large part the employer’s responsibility in the event that an employee’s work authorization expires, an employee changes their name, or an employee is rehired within three years of the date on their original Form I-9.

Common Form I-9 Mistakes

Filling out a Form I-9 is typically not a simple matter for employers who are not well trained in the proper procedure. Not only can it complicate things substantially, but it can also yield common mistakes such as the below which may result in serious consequences for the company:

  • Incomplete information. An employer who is rushed or inexperienced in completing a form may not remember to check for blank fields or missing signatures.
  • Inaccurate data. It is critical for the Form I-9 to be completed accurately. Even a small typo or transposed number can have a big effect on the validity of a Form I-9.
  • Identification document problems. While an employee is required to provide approved identification documents, an employer is tasked with being diligent in collecting those documents and reviewing them in good faith within the deadline window.
  • Missed deadlines. Each section of the Form I-9 comes with specific deadlines that must be adhered to in order to be considered compliant. This requires employers to stay on top of the situation at all times.
  • Management of forms. There are even Form I-9 rules regarding the accessibility and retention. The forms must be readily accessible when needed in the case of an audit. Employers must also follow rules regarding how long a form should be retained and when it should be destroyed. The misplacement of forms is also a common and costly mistake.

It is estimated that more than half of Form I-9s filled out each year contain errors such as these. While these mistakes are among the most commonly made by employers, make no mistake that each has the capability to negatively impact a company’s compliance and potentially result in punitive measures.

The Perks of Using Digital Compliance Software for A Form I-9

No company wants to be on the receiving end of hefty Form I-9 violations. Not only can it cause headaches for a company’s financials and workforce, if picked up by the media it may make them a household name with a negative connotation that can essentially damage or ruin their reputation. To help avoid situations like these, digital I-9 compliance software is recommended.

Some of the perks of using digital compliance software for the Form I-9 can include:

  • Creating a digital, paperless solution. Making the process digital cuts down on the filing and management of thousands of pieces of paper.
  • Facilitating on-boarding. The program should provide a printable checklist for both employees and employers so that they know exactly what information will be required and be able to keep track of each step’s completion.
  • Creating efficiency. Digital software is designed to make the Form I-9 process more efficient by alerting users to blank fields, upcoming expirations or deadlines, and even streamlining the interaction between the Form I-9 and the federal E-Verify program.
  • Reducing errors and increasing compliance. The software should be able to calculate some possible instances of human error before a form is submitted to reduce errors that could have ended up being costly violations.
  • Assisting with document archiving. The program provides employers with reminders regarding which documents must be retained and which must be destroyed.
  • Facilitating reporting and audits. Digital compliance software can help facilitate and streamline reporting for audits, locating audit trails, and printing of I-9 records.

I-9 compliance is a must, but companies utilizing digital Form I-9 software can rest easy and know that looking over their shoulder is only optional.

I-9 Flexibility Extension For Remote Hires

Recently, the U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) jointly announced an I-9 flexibility extension for those workplaces continuing to operate remotely amidst the coronavirus pandemic. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification. The revised flexibility proclamation deals primarily with Section Two of the Form I-9 and the extension has been expanded with a new deadline of August 31, 2021.

I-9 Flexibility Extension

As of April 1, 2021, the Department of Homeland Security revised its extension of its original flexibility guidelines. Under this extension:

  • Companies with employees who are in person at a company location on a predictable or regular basis will be required to inspect Form I-9 Section Two documents in person.
  • Employers hiring employees on or after April 1, 2021 that work remotely due to the pandemic should be temporarily exempt (until the extension expires) from inspecting their Form I-9 Section Two documents in person.

The current extension that went into effect on April 1 is expected to be valid until August 31, 2021, at which point the Department of Homeland Security may reevaluate and either discontinue or renew the extension.

What Is in Section Two of the Form I-9?

The Form I-9 is the result of the 1986 Immigration Reform and Control Act. As of its passing, the federal government requires an employer to verify a new employee’s identity and work eligibility for them to be authorized to work in the United States.

The form has three main sections, each with its own set of rules and deadlines. The first section of the form deals primarily with collecting an employee’s personal information to aid in verifying their identity. The third section is geared toward an employee name change, rehire within three years of an original Form I-9, or the renewal of an expiring work authorization.

Section Two is the part of the form most affected by the above mentioned I-9 flexibility extension. It requires an employee to provide their employer with Form I-9 approved documentation to aid with verifying their eligibility to work. There are three lists of documents generally approved to be used for Section Two including:

  • List A Documents: These documents can help establish an individual’s identity and work eligibility.
  • List B Documents: These documents are generally for the purpose of establishing an employee’s identity and may also require that an item from List C Documents be presented as well.
  • List C Documents: The documents on this list can help establish an employee’s authorization to work and usually require an item from List B Documents also be presented.

The verifying of identity and work authorization as it pertains to Section Two of the Form I-9 is typically required to be done in person and within three business days of an employee’s first day. However, the coronavirus pandemic has necessitated some flexibility, hence the guidelines of the extension listed below.

Original I-9 Flexibility Guidelines

With a large number of companies still working remotely amidst the coronavirus pandemic, the Department of Homeland Security said it would use discretion in deferring some physical presence requirements related to the Form I-9.

More simply put, this may exempt employers of companies working remotely from reviewing a new employee’s identity and work eligibility documents in their physical presence. It does not give employers a pass from performing due diligence in inspecting documents remotely within the three business day deadline indicated on the Form I-9. It is critical for employers to note COVID-19 as the reason for the delay of Form I-9 Section Two documents.

Employers choosing to take advantage of the Department of Homeland Security’s temporary discretion should:

  • Offer written documentation of each employee’s remote onboarding
  • Offer written documentation of each employee’s telework policy

As previously noted, this flexibility may only be offered to employers who are operating remotely. A business with employees onsite is not eligible.

However, once regular in-person operations begin again for a once remote employer, within three days they should:

  • Review identification and work eligibility documents in person for employees onboarded remotely during the pandemic
  • Note the date of that physical inspection on the Form I-9

Stay Up To Date on Developments

To stay on top of the latest developments, employers are encouraged to closely follow the Department of Homeland Security and U.S. Immigration and Customs Enforcement websites for more information. This is critical as when the extension expires, employers will be held responsible for meeting the most current Form I-9 guidelines. Failure to do so could negatively impact their compliance status.

If you have questions regarding the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) and the I-9 flexibility extension, reach out to a reputable and experienced provider who is intimately familiar with I-9 compliance rules and regulations for assistance.

No One Is Above Form I-9 Compliance

Employers across the nation are required to have employees complete a Form I-9 to prove their identity and eligibility to work in the United States thanks to federal law. However, it is not uncommon for some employers to mistakenly think they can slide under the radar either without being audited or investigated. Unfortunately, that is not the case. No one is above Form I-9 compliance.

Most employers do one of two things in their response to the 1986 Immigration and Reform Control Act:

  1. Follow protocol to ensure compliance as mandated by law.
  2. Ignore protocol and hope they won’t be subjected to an audit or investigation.

Ultimately employers must choose which path they will take, but only one leads to compliance mandated by federal law, stability of the business, and the peace of mind that can come with it.

No One Is Above Form I-9 Compliance

Those that think they might be able to escape the long arm of the law should think again. Just recently Elon Musk’s Space X came under investigation by the United States Department of Justice for allegations by a job applicant that the company may have discriminated against hiring him for his citizenship status.

Only time will tell how this case will play out for Elon Musk’s Space X, but regardless employers need to be sitting up and taking notice. Rather than being randomly audited, the investigation is likely tied to the allegations made by a potential employee who did not receive a job offer.

In other words, an investigation is not always random. Sometimes it can be triggered from within the walls of your own business.

Common Triggers for an I-9 Investigation

Many employers incorrectly assume that audits are only random. While some investigations are the product of random selection, others may be triggered by situations such as:

  • Notification of authorities by a prospective, current, or former employee
  • Participation in the construction, food production, or landscaping industries
  • Involvement with industries related to government infrastructure or transportation

The key take away is that if the federal government receives a complaint or allegation that your business may not be following Form I-9 protocol, it may lead to an audit or investigation. Even if the allegation is untrue, which will probably be uncovered during the investigation, if during that process there are some common Form I-9 mistakes also found, it can lead to an accumulation of violations which may result in serious consequences such as:

  • punitive fines
  • full or partial loss of workforce
  • a business losing their license

While a single violation may not be enough to ruin a business, multiple violations might. This is a gamble employers cannot afford to take. It is better to follow protocol to the letter and have your ducks in a row should an investigation become a reality.

Five Steps Employers Can Take Toward Compliance

There are some steps employers can take moving forward to help ensure a higher degree of compliance. Five steps employers can take toward compliance are:

  1. Get organized. Know where all of your I-9 forms are kept and make sure they are filed appropriately. Refer to the verbiage on the form itself to be clear on the guidelines and rules for which forms should be filed and which should be destroyed.
  2. Review I-9 Forms for common mistakes. Even unintentional mistakes can be grounds for not being compliant. Some of the most frequent errors typically include blank or incomplete fields or even missing signatures.
  3. Double check form deadlines. The Form I-9 has three main sections, and each has its own set of rules and deadlines. You can be found non-compliant if you have not met the deadlines set forth.
  4. Stay on top of expirations. It is not uncommon for an employee’s citizenship status to expire. In this case, the employer is responsible for getting proof of eligibility before the employee’s citizenship status expires.
  5. Train staff. One the areas most often responsible for an issue with I-9 protocol can be traced back to improper training. Ensure that the staff you have handling the forms understands what proper protocol is and how to best follow it.

What to Do When Achieving Compliance Takes More Time Than You Have

When sitting down to devise a plan to cover all of the above steps, many employers come to the realization that their current method for completing I-9 forms is more time consuming and staff intensive than what they can accommodate. This can be remedied by enlisting the help of digital compliance software.

Some of the ways that digital software can ease the burden of compliance on employers can include:

  • Digitizing the form. This can cut down on the amount of paperwork laying around the office.
  • Minimization of errors. The program is designed to help catch common human error such as fields that are left blank or incomplete.
  • Alerts regarding deadlines. Digital compliance software can also prompt employers to note upcoming deadlines related to the form I-9 so that they do not go unnoticed.
  • Alerts regarding expirations. Some documents required for the Form I-9 have expiration dates. The software is designed to help alert employers of expirations before they happen.

In addition, digital compliance software is set up to provide centralized reporting so employers can view their compliance status at any time, and it can also facilitate the process amidst an audit.

What Lookout Services I-9 Intelligence Software Offers vs. E-Verify

Since the passage of the Immigration and Reform Control Act of 1986, employers are required by law to verify the eligibility of their employees to work in the United States. However, between the Form I-9 and the E-Verify program, both of which assist with employee verification, it can be confusing for employers to know the best approach for each.

Employees are required to fill out a Form I-9 for employers to verify employment eligibility. However, not all employers are required to use the E-Verify program, unless legally required to do so by special stipulations set forth by the federal government.

Increasingly, employers are turning to digital I-9 compliance software such as that offered by Lookout Services to help minimize errors and bridge the gap between these two compliance requirements. Less errors can leave less room for violations and serious consequences such as financial penalties.

Take a few minutes to review this chart to get a clearer picture of helpful features associated with the digital I-9 compliance software and E-Verify:

What Lookout Services Offers Vs. E-Verify

Feature

Purpose

Lookout Services I-9 Intelligence Software

E-Verify Feature

Integration with an Employer’s HRIS/Recruiting Systems

Data feeds from an employer’s HRIS or recruiting tool can be set up to help populate certain data details in the digital Form I-9, reducing errors, saving time and supporting the compliance monitoring practices of an organization.

X

Not applicable

Validation of input

Information required for the Form I-9 is often detail oriented and number heavy which can allow for multiple instances of human error. The I-9 intelligence features creates validation of input into the system, identifying mistakes before the information is submitted, which can also minimize penalties associated with submitting incomplete data.

X

Not applicable

Minimizing Data Entry

By using a digital Form I-9, the data input on the form will automatically populate relevant E-Verify fields which minimizes the amount of information an employer has to enter. This also typically lowers the opportunity for additional mistakes.

X

Not applicable

Avoid Duplicates

If a company has several human resources employees in charge of onboarding general employees, it is possible for more than one Form I-9 to accidentally be created for the same employee. A duplicate alert feature is designed to identify duplicate information before a form is submitted. Without this service to catch duplicate data, fraud issues and charges could be possible.

X

Not applicable

Auto notices & change history log for all Form I-9 Updates

A digital Form I-9 tool can identify expiring document end dates and send auto alerts before those problems become compliance issues. Additionally, a system will track and record actions required and the dates updates were completed while maintaining compliant I-9 forms.

X

Not applicable

Auto Notices & Tracking E-Verify Actions

Timely auto e-mail notices are distributed to employers about case processing errors and actions related to E-Verify submissions; allows employers to print Tentative Non-Confirmation Notices and perform photo match where required by E-Verify.

X

X

Secured Digital Storage

Digitally stored Form I-9s eliminate the need for voluminous secured storage space, and the time-consuming administrative burden of filing and retrieving these critical documents and their relevant attachments.

X

Not applicable

Printable Forms & Information

Especially during the instance of a mock or real audit, having immediate access to printable Form I-9 information (and any change history) is critical. Effective digital I-9 systems provide printable documents which are accessible at any time.

X

Not applicable

Multiple Location Accessibility

Unique access rights can be set up for companies with multiple locations to have access to all of their employment verification programs sites providing corporate level compliance management oversight and data security monitoring.

X

Not applicable

Peace of mind regarding employment verification

Unique access rights can be set up for companies with multiple locations to have access to all of their employment verification programs sites providing corporate level compliance management oversight and data security monitoring.

X

Not applicable

If you are an employer who would like more peace of mind and are interested in obtaining information on how our digital I-9 compliance software can help you with maintaining Form I-9 and E-Verify compliance, please reach out to Lookout Services today.