How To Stay I-9 Compliant During Pandemic Related Closures

Employers that are hiring in the midst of these uncertain times are struggling with how to stay I-9 compliant during pandemic related closures. Many of these closures are affecting the validity of employee authorization documents and how employers can document special COVID-19 document extensions. By enlisting the help of a company that provides professional I-9 compliance guidance, employers may be better able to navigate the winding road ahead.

 

COVID-19 Temporary Guidelines For Hiring

As some companies continue to hire employees during these pandemic related closures, staying I-9 compliant is proving to be a challenge. To make things even more confusing there can be subtle differences on compliance rules depending on if a company’s entire workforce is working remotely or if at least some of their locations are physically open.

For companies that are entirely working remotely during the pandemic as of April 2020, there are some allowances being made for the virtual inspection of employee authorization documents through platforms such as web-based conferencing, fax, or virtual calls. To be eligible to do so, companies must do the following:

  • Have the entire workforce work remotely
  • Document the remote work policy with the Department of Homeland Security
  • Document the method of virtual inspection on the Form I-9 in sections two and three
  • Review tangible employee authorization documents in person within three days following the expiration of the end of the COVID-19 national emergency (or May 19, 2020) and then properly document this action

Companies that have at least some locations operating as normal, do not have the luxury of virtually inspecting employee authorization documents. However, they may be allowed to have a third-party act as an official authorized representative in reviewing authorization documents. Employers should note that some states may have more stringent rules on third-party designations than the national guidelines.

Whether employers are working remotely or have some physical locations open, it is crucial that they frequently check on government policy during this time of unprecedented change.

 

DMV Closures Affecting Employees Completing I-9 Forms

In this time of national business closures due to the coronavirus pandemic, many states have Department of Motor Vehicles (DMV) that are either closed or offering only limited services.

Unfortunately, this can have an unwelcome trickledown effect on employees attempting to successfully complete a Form I-9 for their employer. The primary problem with limited or no DMV services is that employees may have no other choice but to use an expired driver’s license as a form of identification on an I-9.

To help combat this issue, some states are extending the expiration date of state IDs and/or driver’s licenses.  While helpful, this presents a challenge for employers on how to document this unusual and temporary extension. The following steps may be helpful in this case:

  1. For employees with a driver’s license or state ID that is expired on or after March 1, 2020 in a state that has extended document expiration dates due to COVID-19, these forms of identification may still be acceptable as a List B document.
  2. To protect against I-9 violations, employers must document the acceptance of these documents in Section 2 of the form and enter the term COVID-19 EXT in the Additional Information Field.
  3. For added protection, employers should attach a copy of the DMV’s webpage or other supporting documentation as proof of the document extension.

Employers should check their state’s Motor Vehicle Administration or Department of Motor Vehicle’s website to confirm if they have or have not auto-extended the expiration date of driver’s licenses and state IDs.

 

How DMV Closures or Limited Services May Affect the E-Verify Process

Some companies either voluntarily or by mandate use the federal E-verify system to complement the Form I-9 process. Expired driver’s licenses and state IDs can cause some issues with E-verify as well.

In the case that an employee has an expired driver’s license or state ID that is eligible for an extended expiration date in their state due to COVID-19, employers should enter the actual expiration date of the employee’s document for E-verify purposes.

That said, the coronavirus crisis is causing many standard procedures to be reevaluated on an almost daily basis. Employers should check E-verify’s website daily for frequently asked questions to ensure proper procedure is being followed.

 

How Professional I-9 Compliance Guidance May Be Helpful

Learning how to stay I-9 compliant during pandemic related closures is just one of many issues that employers currently have on their plates, and it is overwhelming for many. Employers may want to consider enlisting the help of a company who specializes in professional I-9 compliance to assist with lightening their load and helping them stay on top of COVID-19 related compliance issues.

Lookout Services has provided I-9 guidance to employers for more than twenty years and offers digital I-9 compliance software that features the following:

  • A digital solution for I-9 compliance
  • Printable checklists for employees and employers to help keep everyone on task for completing the Form I-9 in advance of section deadlines
  • Time sensitive alerts for employers regarding impending deadlines
  • Minimization of frequently made Form I-9 errors such as incomplete fields, blank fields, and missing signatures
  • Document tracking
  • Document archiving assistance

 

Let Lookout Services assist you in learning how to stay I-9 compliant during pandemic related closures.  Call us to set up a virtual consultation today.

Evolution of US Immigration Policy and the Form I9

A Reminder of Why We Do What We Do

It’s easy to fall into a mode of merely complying with the details of the regulations that shape the slices of the world we inhabit, but a look at how the I-9 culture evolved can remind us that it isn’t just busy work the government imposes upon us. Government is by habit and nature reactive, so the current version of the Employment Eligibility Verification form (I-9) is the latest iteration resulting from a series of events leading up to a form that serves an interest. Understanding its history can be instructive in showing us that collection and maintenance of this data is an expression of modern societal values, regardless of whether they are right or wrong.

A Little History On The I-9 Form

The founding fathers of the United States promoted a policy of open immigration, inviting all to our shores to seek their fortunes. The restrictions in those early days were placed on naturalization—you could come here to work, but you couldn’t vote or hold office unless you became a citizen. This was the general attitude until after the Civil War, and today, an enduring legacy of that policy is the Constitution’s requirement that a president must be born in the U.S.

In 1921, Congress developed the National Origins Formula which used the numbers of foreign-born residents from the 1910 census to establish proportional quotas by country for future immigration. The reference census shifted over the years to support the values of the day, but immigration was essentially frozen during the Depression. The Immigration and Nationality Act of 1952 mainly changed the quotas yet again, but the 1965 amendments to that law abolished the national origins system altogether and focused priorities instead on immigrants with skills our workforce needed.

1986 brought us to the foundation of current policy with the bipartisan passage of the Immigration Reform and Control Act which, for the first time, created penalties for knowingly hiring undocumented workers. The idea was to preserve the American tradition of legal immigration while putting a stop to the illegal variety. The fear of terrorism generated legislation in 1996 that would vastly increase the number of deportations for criminal activity, and then 9/11 happened, perpetrated by 20 foreign terrorists who had entered the country legally.

The attacks altered the thinking in a lot of areas, but Congress has yet to agree on a path to immigration reform. Instead, it created the Department of Homeland Security (DHS) to, in part, oversee immigration through three newly formed agencies: US Customs and Border Protection, Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS). USCIS is responsible for documenting alien employment authorization (the I-9) and running the E-Verify program, while ICE is responsible for enforcing I-9 compliance. Other divisions within DHS are meant to ensure that these provisions are not applied by businesses or the government in a discriminatory manner.

The introduction and reintroductions of the DREAM Act over time have, however, produced an unofficial consensus that undocumented immigrants who graduate from American high schools and attend college or join the military should be granted a path to citizenship. President Obama bolstered this value with executive orders effectively delaying the deportation of such people.

Immigrant visas are still limited, but immigrants generally become eligible for citizenship after five years of legal residence unless they were admitted through temporary work permit or student visa, neither of which provides a path to citizenship. Illegal immigration peaked at over one million in 2000 but is thought to have declined by half by 2009.

So Where Does that Leave Us?

Employment in the US is considered the magnet that draws illegal immigrants, so the theory is that they will not come if they cannot work. Employer sanctions are therefore designed to make cheaper labor less attractive than compliance. This paradigm forms the basis for the regulatory plan that resulted in the I-9. By making employers liable for hiring undocumented workers, fear of punishment for noncompliance is what prevents these workers from attaining the financial means to remain in this country, and, the government hopes, deters others from entering illegally.

The I-9 form requires the employer to scrutinize the prospective employee’s identity papers. Employers need to check for two things: (1) to verify that this person reasonably appears to be who he or she purports to be and (2) to confirm that he or she can document an immigration or citizenship status that permits eligibility to work in the United States. By requiring that employers do so within three days, the government is ensuring that employers do not let this step fall through the cracks. By requiring a signature, the government is encouraging employers to be thorough in their examination of the presented documents and honest in their assessment under threat of perjury charges. By requiring employers to retain a form containing unexpired documentation for each employee, the government is holding them accountable for ongoing verification that the employee remains eligible to work in the U.S. Employers are, therefore, on the frontlines of executing this policy.

Regardless of an employer’s position on the various issues that make up immigration policy, ICE’s surge in enforcement actions and promise to expand them even further is the reality. The current administration continues to commit unprecedented amounts of resources to enforce existing immigration and employment laws. This means that the government is watching employers closely and won’t hesitate to investigate for any reason. If ever there were a good time to reevaluate I-9 compliance procedures so a business can survive an audit unscathed, it is now.

2019 Primer To the Immigration and I9 Compliance Laws

FY 2018 saw the number of Immigration and Customs Enforcement (ICE) worksite investigations quadruple, so it’s a good time to consider how to be compliant with immigration laws and I-9s in 2019. The federal government is actively seeking companies that employ undocumented workers as a means of rooting out existing illegal immigration and deterring it in the future. The idea is that they will not come if they cannot work, and employers represent the main line of defense. ICE doesn’t need an excuse to check on whether you’re doing your part—agents may knock on your door for any reason.

Every indication is that this surge in enforcement will continue. ICE received over 12% of the Department of Homeland Security’s entire budget for FY 2019, and folded into this budget is funding for 3,312 additional staff to handle the increased caseload. At the same time, E-Verify received $131.9 billion to upgrade systems in preparation for making it mandatory for all businesses across the nation. The pressure isn’t letting up, and all you can do is be prepared when the auditors arrive. It’s a good time to tighten up procedures, and working with a knowledgeable partner to guide you in performing a self-audit is an ideal place to start. A self-audit can identify holes in the I-9 compliance process and give you notice to fill them before it’s too late.

Be Careful Not to Discriminate

The Immigration and Nationality Act of 1965 put an end to government-backed immigration preference for northern and western Europeans. Instead of continuing to set quotas by country, priorities were instead focused on family connections and adding needed skills to the workforce. The relevant provisions in this context, however, relate not only to methods of administering I-9s but also in auditing procedures. The law generally prohibits these types of conduct:

  • Unfair practices in documenting the I-9 and E-Verify;
  • Discrimination in citizenship or immigration status;
  • Discrimination by national origin and
  • Intimidation or retaliation.

When performing a self-audit, an employer may decide to review either all forms or a sample of forms. If the sample option is chosen, the sample must be taken in a neutral and nondiscriminatory manner. Criteria for the sample set must avoid even the perception of discriminatory or retaliatory intent. To accomplish this, do not self-audit based on an employee’s national origin or citizenship status or in retaliation for any reason. Consider the audit’s timing, scope and selective nature as well.

How to Correct I-9 Errors

Section One of the I-9 is always to be filled out by the employee, and an employer may not correct errors found there. Instead, the employee should draw a line through the mistaken information, correct it and initial and date the correction. If someone helps the employee to accomplish this task, that person’s information should appear in the preparer/translator block of the form. If the employee no longer works for the employer, a statement describing the error and why its corrections cannot be made should be attached to the form.

The employer should correct mistakes made in Section Two in the same manner. Mistakes should not be concealed—like with liquid paper—or backdated. If there are too many mistakes to reasonably correct on the original, a new I-9 may be generated as long as the incorrect version is attached and explained.

Miscellaneous Pearls of Self-Audit Wisdom

  • The forms required for eligibility verification change over time, but the important point is which forms were acceptable at the time the I-9 was completed.
  • If a self-audit reveals that a form was never completed or is missing, one should not be backdated. Instead, a form should be immediately completed, and the employer should enter the correct date of employment in Section 2. A statement explaining the error should be attached to the form.
  • If an employer subsequently concludes that the documentation presented by the employee does not appear genuine or accurate, the employer should give the employee the opportunity to provide acceptable substitutes. The simple fact, however, that a photocopy of acceptable documentation is unclear is not sufficient to question it—the employer must have a foundation for skepticism.
  • Simply requiring individual employees to complete new forms (absent a merger or acquisition) when errors are found should be avoided. Without sufficient justification, allegations of discrimination may arise. Exceptions may be made when systemic errors are found in the I-9 process that make deficient forms widespread.
  • It is illegal to knowingly employ an alien who is not authorized to work in the United States, and “knowingly” can be merely inferred in the course of exercising reasonable care. If your audit reveals such an employee, continuing to employ him or her places you outside the bounds of the law.

With each new ICE agent on the payroll, the chance of the agency’s attention falling on you increases. It no longer pays to take a chance with hiring cheaper, undocumented labor or phoning in I-9 procedures. It’s not too late to revise your approach, and a self-audit can give you a chance to solve problems before ICE auditors take an interest. It may not insulate you from all liability, but it will demonstrate good faith.

What To Expect When You’re Expecting…ICE Auditors That Is

Immigration and Customs Enforcement (ICE) has increased worksite investigations, making understanding I-9 audits more relevant than ever for business owners. When a negative audit can cause millions of dollars in fines and penalties as well as prison time, it pays to evaluate procedures and perform a self-audit before ICE does. The agency is particularly concerned with industries that (1) pertain to critical infrastructure or (2) have traditionally been known to exploit undocumented workers. But even an anonymous tip can bring agents to your door. Here’s an overview of what to expect with an ICE investigation.

Understanding I-9 Audits

The Immigration Reform and Control Act of 1986 mandated that employers verify both the identity and work eligibility of each employee thereafter and provided for civil and criminal penalties for violations. Subsequent regulations created the Employment Eligibility Verification Form (I-9) as the means and require employers to maintain I-9s for current employees always, and former employees for a time. The federal government has the right to inspect the forms, and that process begins with serving a Notice of Inspection (NOI), giving the employer a minimum of three business days to produce an I-9 for each employee. The NOI may also request additional documentation such as a payroll copy, Articles of Incorporation or business licenses. ICE audits the forms and documentation, inspecting them for technical or procedural violations.

The most common notifications are these:

  • Notice of Inspection Results—Often called a “compliance letter,” the business is told it has been found to be I-9 compliant.
  • Notice of Suspect Documents—The business is told that an employee’s documentation is insufficient and he or she is therefore unauthorized to work. Both the employer and employee may attempt to establish legitimacy, but the employer is open to criminal and civil penalties for continued employment.
  • Notice of Discrepancies—ICE has been unable to determine work eligibility so additional documentation is required to verify status.
  • Notice of Technical or Procedural Failures—If errors are found, the employer has ten business days to make corrections. If left uncorrected, technical and procedural failures become substantive violations.
  • Warning Notice—A warning is issued when substantive violations are found, but the employer is expected to comply in the future. These do not reach the level of financial penalty.
  • Notice of Intent to Fine—Fines may result for:
    • Substantive violations;
    • Uncorrected technical violations;
    • Knowingly hiring undocumented/ineligible workers, or
    • Continuing to employ undocumented/ineligible workers.

If the case reaches the level of fines, each violation will be detailed, and the employer may either negotiate a settlement or request an administrative hearing within 30 days. If he does nothing, a Final Order is issued.

Determination of Fines

Fines are based on an equation derived from two schedules, typically calculated from the date of inspection:

Knowing Hire/Continuing to Employ Fine Schedule

+

Substantive/Uncorrected Technical Violations Fine Schedule

Each schedule can be enhanced or mitigated by what ICE calls the Enhancement Matrix.

Knowing Hire/Continuing to Employ Fine Schedule—ICE will divide the number of these violations by the total number of employees for the violation percentage. The schedule is allocated by percentage and increases with the number of times the employer has violated this law. The range is currently from $548 to $19,242 but is subject to change with inflation.

Substantive/Uncorrected Technical Violations Fine Schedule—ICE will divide the number of violations by the total number of employees for the violation percentage. Also allocated by percentage, this schedule increases on whether it is the employer’s first, second or third+ offense. The range is currently from $220 to $2,191.

Enhancement Matrix—Each schedule’s fine may be enhanced or mitigated by up to +/- 5% based on the following six factors:

  • Business size;
  • Good faith;
  • Seriousness;
  • Unauthorized aliens;
  • History and
  • Cumulative adjustment.

While this is the typical means of determining fines, violations can also result in:

  • Additional civil or criminal penalties for a pattern of violations;
  • Debarment from government contracts;
  • Back pay for individuals discriminated against, or
  • Being required to hire individuals discriminated against.

Recheck Your I-9 Procedures

ICE’s goal with its surge in investigations is to promote a “culture of compliance” to enhance public safety and national security while protecting lawful companies from unfair competition. The safest way to live in such a culture is to comply fully with it. I-9s are legal documents, and businesses are liable for administering them properly and for keeping up with changing immigration and employment laws. Performing a self-audit can be a useful exercise to reinforce I-9 compliance procedures. I-9 software can be helpful in filling out and tracking the forms and expiration dates, as well as incorporating changes to the law and regulations. Whatever your approach, it’s preferable to have a solid system in place, just in case ICE comes knocking.