Small Business and I-9 Compliance

Businesses nationwide have been expected to complete a Form I-9 for employees to ensure their eligibility to work in the U.S. since the Immigration Reform and Control Act of 1986 has been in place. While this can be a bigger undertaking for larger businesses of one hundred or more employees, federal law still requires that small businesses follow the same rules to be I-9 compliant. In reality, the stakes can be even higher for small businesses found to be non-compliant. For this reason, more small businesses are turning to digital I-9 compliance software to help make the process more effective and reliable, from start to finish. Businesses with a defined process and ownership and who regularly track and proactively review their I-9s are best positioned to steer clear of penalties and fines during an I-9 audit.

Common I-9 Compliance Roadblocks for Small Businesses

The Form I-9 can appear unassuming, after all it is just a form. However, the amount of data required, combined with the varied guidelines and deadlines for each section, especially Section 2 of the form, can make it complicated and sometimes confusing. And some complications can yield mistakes that can negatively impact a business, and the need to avoid common I-9 compliance roadblocks like these becomes critical. Here are some of the most common mistakes small businesses often make:

Innocent mistakes.

Through the eyes of an ICE Auditor, a mistake is a mistake, whether it is innocent or not. An error can range from accidentally transposing a couple of numbers to unintentionally leaving a field blank to forgetting to add a signature where designated.

Missed deadlines.

All three sections of a Form I-9 have distinct deadlines for completion. Should a section not be finished within the assigned window of time, it may be considered a violation, which could result in a penalty.

Incomplete recording of the Identification & Work Authorization documents.

If an employer is not diligent in collecting and recording all of the appropriate documents required on the Form I-9, it will affect compliance and be considered a violation.

Not Tracking of Expired Document.

Some of the work authorization documents expire and require follow up from time to time to collect new valid information. For example, an employee who is authorized to work under an temporary status such as a H-1b, L-1a/b visa or one who holds an Employment Authorization Document (EAD) all have expiring work authorization dates. It is the employer’s responsibility to be aware of upcoming documents set to expire and to contact the employee well in advance of the expiration date so to obtain updated proof of eligibility to work before those documents expire.

Retention Management.

Employers are required by law to maintain for inspection the original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

How I-9 Violations Can Spell Big Problems for Small Businesses

The consequences of being found non-compliant during an audit on one or more counts may spell big problems for small businesses. Violations are normally categorized into one of these two categories:

  1. Civil. This is typically due to not being compliant via employment verification, document fraud or abuse, discrimination, etc.
  2. Criminal. These violations can be more serious and are generally due to documented patterns of hiring, referring, or conducting fee-based recruiting of individuals unauthorized to work in the United States.

Fines and penalties can be crippling to the bottom line. Auditors typically apply a fine per violation. That can potentially mean multiple violations for just one employee. If those violations appear in more than one employee Form I-9, the hefty fines and penalties associated can add up quickly. For example, penalties for substantive violations, which includes failing to produce a Form I-9, range from $230 to $2,292 per violation. Where as monetary penalties for an employer who knowingly employs and continues to employ unauthorized workers could face violations range up to $20k per violation. ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. In a worse case scenario a company can lose their license to operate temporarily or indefinitely if found non-compliant.

If a company receives a Notice of Inspection (NOI) from U.S. Immigrations and Customs Enforcement “ICE” employers they should contact their legal counsel immediately for advice. ICE will provide the company with at least three business days to produce the Forms I-9. Often, ICE will also request other supporting documentation, such as a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.

Why Small Businesses Can Benefit from Using Digital I-9 Compliance Software

Because a small business often has less management positions to assist with new hires and handling the employment on-boarding process and paperwork, additional resources such as digital I-9 compliance software is extremely helpful. Some of the ways that compliance software can be beneficial to a small business include:

  • Minimization of common mistakes due to errors such as blank fields or missing signatures, reducing a companies risks for violations
  • Assistance with tracking the hiring process progression with notifications for upcoming deadlines
  • Provides additional oversight of the employment verification, reverification, and document retention stages
  • Notifications sent regarding upcoming document expiration dates
  • Integration between the electronic Form I-9 and the government’s E-Verify web services saves time, costs and further reduces opportunity for error and non-compliance liabilities
  • Centralized management reports to track omissions, actions and overall program’s compliance

When it comes to small businesses and I-9 compliance, there is no leniency in federal laws regarding ensuring that employees are eligible to work in the United States. Do not carry this weight on your shoulders alone or unnecessarily risk your company’s compliance. Enlist the help of a vendor who can implement a digital I-9 compliance software today and bask in the peace of mind it can offer.

2021 E-Verify Mandates

All employers need to be aware of the revised 2021 E-Verify mandates to ensure compliance, especially if operating across state lines. Requirements are changing frequently and penalties for non-compliance can include monetary fines per violation and denial, suspension, or revocation of an employer’s business license. While not every U.S. employer is required to use the E-Verify program, it is critical that employers educate themselves on how the program works and if it is mandatory in their state(s) of operation.

How E-Verify Works

E-Verify is a government sponsored web-based program which is designed to compare information gathered from an employee when completing the Form I-9 against other federal agency databases, such as the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). This quick database comparison can produce results in as little as three to five seconds. At the time of its rollout, E-Verify was largely a voluntary program, however, it has grown in popularity as it is widely considered an added layer of protection for employers in verifying an employee’s identity and work eligibility in the U.S. However, employers should note that the E-Verify program will not perform a criminal background check on their employees. Separate operational processes should be in place to handle this review.

Who Do the New 2021 E-Verify Mandates Apply To?

As of 2021, the list of states and their mandates for the E-Verify program continues to grow. The new changes can be broken down as follows:

States requiring at least some employers to use the E-Verify program:

  • Alabama
  • Arizona
  • Georgia
  • Mississippi
  • North Carolina
  • South Carolina
  • Tennessee
  • Utah

State contractors only are mandated to use E-Verify in:

  • Colorado
  • Louisiana
  • Minnesota

States where E-Verify requirements exist for local municipalities:

  • Michigan
  • New York
  • Oregon
  • Washington

Public employers only are required to use E-Verify in:

  • Idaho
  • Virginia

Contractors and/or public employers working with the state must use E-Verify in:

  • Florida
  • Indiana
  • Missouri
  • Nebraska
  • Oklahoma
  • Pennsylvania
  • Texas

As is illustrated above, E-Verify requirements can vary widely from one state to another and often are based on the number of people employed within a business. When operating across state lines, it is a good practice to implement the E-Verify process across all business locations, even if it is not required by the law to ensure consistency for all work sites and to avoid the appearance of discriminatory employment practices.

E-Verify Is Not Yet Mandatory for All Employers

For many, E-Verify use is not mandatory, unless a company is:

  • Ordered to use E-Verify per an official legal ruling
  • Operating in a state that requires employers to participate
  • Participating in federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause

Although E-Verify may not be required for all businesses, companies located  in the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Marina Islands are eligible to use the program.

Enrolling in E-Verify

There are a few different options for enrolling in E-Verify which include Employer Access, E-Verify Employer Agent Access, and Corporate Administrator Access.

The E-Verify enrollment and onboarding process may include signing a program agreement and participating in mandatory web training to ensure maximum understanding and effective use of the program. To ensure every step is followed to the letter, new companies enrolling in the program are encouraged to visit the E-Verify website for additional information and an instructional webinar.

Digital I-9 Compliance Software is a Valuable Resource for E-Verify

When it comes to E-Verify, many businesses are increasingly turning to the use of digital I-9 compliance software for help in streamlining the process. This can be particularly critical as much of the input used for the Form I-9 is used to create an E-Verify record for each employee at the time of hire, reducing the need for retyping information into E-Verify and therefore lowering the risk of making errors. In addition, reliable I-9 compliance software can send E-Verify alerts of required employer actions and track the status on any cases that may be left open or unresolved in the system.

Review the new 2021 E-Verify mandates in detail and consider implementing digital I-9 compliance software to ensure you are effectively managing your compliance requirements and minimizing your company’s liabilities.

E-Verify Tentative Nonconfirmation (TNC) Action Enforcement

In October of 2020, the United States Citizenship and Immigration Services (USCIS) announced it would be enforcing the existing rule for employers to take action within ten federal government working days of receiving a Tentative Nonconfirmation (TNC) for an employee. Prior to this announcement, USCIS guidance urged employers to generally take action as soon as possible upon receipt of a TNC and was not specific. If you are currently enrolled in E-Verify, you have likely received one of these E-Verify e-mail notices by now, which can be quite startling. This communication is a gentle reminder of the new focus on enforcement and the employers wake up call to take intentional action.

The October announcement has many employers wondering why the sudden increase in enforcement. Essentially, USCIS was seeing a large number of open TNC cases, which likely indicated that:

  1. E-Verify users are not referring cases to government agencies when an employee contests to resolve a TNC
  2. E-Verify users are not closing a case if an employee chooses not to contest the TNC

The bottom line here is that when an E-Verify user fails to take their responsibilities for E-Verify actions they are at risk of receiving a violation which can negatively impact their compliance. In some cases it could even be possible that the employer’s E-Verify account could be terminated, rendering the business unable to operate.

Employers using E-Verify have the duty of care to ensure those in the organization who are responsible for this oversight truly understand the requirements of the program, grounds for TNCs, and how to resolve these E-Verify notices within the ten-day deadline in order to stay compliant. Completing the TNC process strengthens E-Verify program and helps ensure employers close E-Verify cases according to program requirements. Unfamiliar with E-Verify? See more about the program below.

What Is an E-Verify Tentative Nonconfirmation (TNC)?

A TNC typically means that the information input into the E-Verify system by an employer does not match government agency records from the Department of Homeland Security (DHS) or the Social Security Administration (SSA).

An employer could receive a TNC notification from DHS or SSA for one or more of the following reasons:

  • Information not entered correctly by the employee or employer, including transposed or mismatched numbers, incorrect dates or misspelling of employee’s first or last name
  • Unreported name changes by the employee
  • Immigration or citizenship status change
  • Unverifiable passport or identity information such as a driver’s license or state ID card
  • Photo match issue
  • DHS record such as an Alien number, I-94 number and/or foreign passport number is incorrect

Actions Required for a TNC

It is worth noting that the ten-day window is not dedicated to resolving the TNC issue, rather it simply mandates that an employer either declare in the E-Verify system that an employee is contesting the TNC or otherwise close the individual’s case after then ten-day period has passed if they have received no decision from the employee.

According to E-Verify’s website, the proper steps to take upon receiving notification of a TNC are:

  • Further Action Notice. The employer must alert the employee in question of the TNC via a printed copy of the Further Action Notice. This notice gives the employer information about how to properly notify an employee about a TNC and additional information about the TNC itself.
  • Employee Decision. The employee must make a decision about contesting the TNC within the ten federal government working day period as properly indicated on the Further Action Notice. If an employer does not receive a decision by the end of the tenth day or if the employee confirms they will NOT contest the TNC, the employer may close that individual’s E-Verify case and end the employee’s employment.
  • Employee Contest. If an employee wishes to contest a TNC, the employer should update E-Verify with a referral date which sets the ten-day window and provides a specific date by which the employee must visit either a Department of Homeland Security or a Social Security Administration office. The type of TNC declared will dictate which type of office the employee should visit. It is critical to note that during the TNC period where the employee has confirmed that they will take the requisite action on the TNC, the employer may NOT take any adverse action (terminate, suspend, withhold or lower pay, etc).
  • Visit DHS or SSA Office. The employee promptly acts to resolve the mismatch issue. An employee should visit the DHS or SSA as soon as possible. If the employee does not act to resolve the TNC issue within ten working days of that employee referral, E-Verify may change the employee’s case status to E-Verify Final Nonconfirmation, after which an employer may terminate the employee.
  • Update E-Verify case. As appropriate, after a quick compare against other government databases, the employee’s E-Verify record will be electronically updated with a final conclusion either after a mismatch is resolved or no action is taken.
  • Employer closes E-Verify case. Whether it is due to not receiving a decision about contesting the TNC from an employee in the given time period or because E-Verify issued a Final Nonconfirmation, an employer will need to close the E-Verify case.

About E-Verify

E-Verify is an internet-based program available to employers to confirm the eligibility of their employees to work within the United States.

The information input into E-Verify are the same personal details collected on the Form I-9, which employees are federally mandated to complete on the first day of employment. Once entered the data is compared against records from government agencies to ensure identity and employment eligibility of an employee. Here is a comparison between Form I-9 and E-Verify:

Form I-9

Mandatory for all new hires

Does NOT require the employee to include a Social Security number

Does not require a photo on the identify documents (List B of the Form I-9)

Must be used to reverify expired employment authorization

E-Verify

Is voluntary for most employers*

Requires the employee to include a Social Security number

Requires a photo on identity documents (List B)

MAY NOT be used to reverify expired employment authorization

*E-Verify enrollment is voluntary for an employer unless they fall into one of the following categories:

  1. The employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause
  2. The employer has operation in a state where legislation requires it
  3. The employer has been provided an official legal ruling

More information about the E-Verify program can be found on the E-Verify website.

E-Verify Rolls Out New myUploads Feature

Resolving a U.S. Department of Homeland Security E-Verify Tentative Nonconfirmations (TNC) may now be a little more convenient as E-Verify announced their roll out of myUploads, a new feature that allows individuals to electronically upload images of required employment verification documents. The timing for myUploads is particularly a relief, given the October 2020 announcement by United States Citizenship and Immigration Services (USCIS) that they would be more diligent in enforcing their 10-day rule for employers to take appropriate action upon receipt of an E-Verify Tentative Nonconfirmation (TNC) notice.

How E-Verify Rolling out myUploads May Help

For many employees and employers the deadline of ten federal government working days can be incredibly stressful. However, E-Verify’s rollout of myUploads may help alleviate some of that stress.

This free, new feature allows individuals to electronically upload pictures of their documentation using a smart device or personal computer in an effort to quickly resolve E-Verify or Self Check DHS Tentative Nonconfirmations.

The convenience does not change the first part of the TNC process in which an employer must notify the employee of their receipt of a TNC. It is recommended that this be done discreetly, and that the employer provide the individual with a Further Action Notice (FAN) which can be instrumental in explaining the entire TNC process and provides E-Verify’s myUploads instructions.

If you have questions or concerns regarding the E-Verify program, TNCs, or the new myUploads feature, it is critical to an employer’s compliance status to review the details on E-Verify or to reach out to E-Verify directly for clarification as soon as possible.

What Is E-Verify?

Although this federal program is not currently required for every business in the nation, many employers choose to utilize this free web-based program to assist them with confirming the eligibility of employees to work in the United States.

Upon hiring, employers are required to have a Form I-9 completed for each employee. The purpose of this form as defined by the 1986 Immigration Reform and Control Act is to gather personal information and documentation from employees to help confirm their identity and eligibility to work in the U.S.

As an added layer of work authorization security, the E-Verify program is often used. Employers can open a case for an employee with information from their Form I-9. Then federal agencies such as the Social Security Administration and the Department of Homeland Security will compare that data with data of their own to further validate an employee’s work eligibility.

Currently E-Verify is available to employers and employees in all fifty U.S. states, as well as several other U.S. jurisdictions such as The District of Columbia, Puerto Rico, and the U.S. Virgin Islands to name just a few. Participation in the program is largely voluntary, unless:

  • An employer’s state legislation requires E-Verify to be used
  • An employer must use E-Verify due to an official legal ruling
  • An employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause

Companies with questions about whether their business is required to use E-Verify should visit the program’s website for more information.

Tentative Nonconfirmation Basics

In E-Verify terms, a Tentative Nonconfirmation or TNC is a sign that the data put into the E-Verify system does not match information on file with the government agencies of Department of Homeland Security or the Social Security Administration.

While receiving a TNC can be unsettling, there can be a number of reasons for this notice, some of which are rather benign but still require action. Among the most common situations resulting in a Tentative Nonconfirmation are:

  • Employee’s name that has not been reported to government agencies such as SSA
  • Information that contains transposed numbers
  • Incorrect information about an employee such as a wrong birth date
  • Immigration status that has not been updated
  • Citizenship status that has not been updated
  • Unverifiable identity or passport data
  • Photos that do not match

If an employer receives a TNC regarding an employee’s E-Verify case, they are required to alert the employee of the issue via a printed copy of the Further Action Notice and task them with resolving it by visiting the DHS or SSA within a specified timeframe. There are two common scenarios:

  1. The employee takes action with the SSA or DHS (whichever is applicable) to resolve the TNC
  2. The employee takes no action at all within the ten-day window set forth by USCIS

If an employee does not take action in the ten-day timeframe, an employer can label the case as Final Nonconfirmation (FNC), mark the case “Closed” in E-Verify and then terminate the employee.

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.

2021 E-Verify Requirements for Florida

E-Verify is becoming an increasingly valuable part of the hiring process in the U.S. but is not currently mandatory for everyone. However, thanks to a law passed in the state of Florida, public and private employers in that state must comply with applicable E-Verify requirements beginning January 1, 2021. It is important to note that the new 2021 E-Verify law for Florida does not replace the current Form I-9 process. If you are one of these businesses or one of their potential employees, read on about the 2021 E-Verify requirements for Florida because your livelihood could depend on it.

About E-Verify

While the Immigration Reform and Control Act that passed in 1986 does requires businesses to verify an individual’s identity and eligibility to be eligible to work via the Form I-9, the E-Verify program is not universally mandatory for all employers.

Those businesses required to utilize the program are usually asked to do so because they are:

  1. Mandated by an official legal ruling,
  2. Entering into federal contracts or subcontracts with a FAR (Federal Acquisition Regulation) E-Verify clause,
  3. Operating in a state whose businesses must use E-Verify.

With the passage of the 2021 E-Verify law in Florida, public businesses in that state are now required to use E-Verify.

How E-Verify Works

By federal law, businesses hiring in the United States must complete the Form I-9 process in full. The document is designed to verify employee information and document authentication. The data collected in this form is then used to complete an E-Verify case.

The program is internet based and businesses must open and complete a new E-Verify case for an employee no later than the third business day after their first day at work. Once the case is completed by an employer, the program then compares that information with data already on file with government agencies.

Depending on the specific situation of the employee in question, E-Verify can typically provide verification results in just a few minutes.

2021 E-Verify Requirements for the State of Florida

The new 2021 E-Verify requirements for the state of Florida were passed in the summer of 2020 and went into effect on January 1, 2021. In order to better understand how the new law will affect businesses and individuals, it is important to breakdown a few differences between:

  • public employers
  • private employers

Public employers are generally defined as entities in either county, local, municipal, regional, or state governments or community colleges, public schools, or state universities who hire people to perform work for them for payment.

According to the new E-Verify law, public employers, contractors and subcontractors in the state of Florida are required to officially enroll in the E-Verify program and utilize it to confirm work eligibility status for all new employees.

Due to this specification, the relationship between public contractors and subcontractors becomes more complicated. Subcontractors have to provide contractors with an affidavit showing that they do not hire or work with unauthorized entities. There are some provisions for unknowingly engaging with a subcontractor in violation of this rule, but resolving the situation can still be difficult.

Private employers are generally defined as an entity or person who transacts business in Florida, has a license issued by a state agency, and employs persons to perform labor or services in Florida in exchange for either salary, wages, or other forms of remuneration. There is no minimum threshold that triggers a private employer’s obligation in Florida to comply with the E-Verify law. The Florida mandate clearly indicates that the first requirement of a private employer is to make an offer of employment to an applicant AND the applicant must accept the offer before the employer takes any action to verify the employee’s work authorization. Once these two criteria are met, a private employer in Florida may choose one of two approaches to verify the new hire’s identity and authorization to work:

  1. Utilize the Federal E-Verify program.
  2. Maintain a physical copy of an employee’s Form I-9 supporting identity and work authorization documents for a minimum of three years post the initial hire date.

One note of particular importance under this new law is that in most cases, Florida private employers are not required to verify work eligibility of a continuing employee hired before 2021.

What Could Happen If You Violate the New 2021 E-Verify Law for Florida

For both public and private companies who have done business in Florida for many years prior, this new law can bring sweeping change, and with it an overwhelming amount of work. While all the extra effort required may be tempting to ignore, it is illegal to do so.

Depending on the unique set of circumstances surrounding each violation, those who do not abide by the new Florida E-Verify law may face significant punitive consequences that could result in:

  • Licenses being withheld until an affidavit is provided,
  • Permanent revocation of licenses for a specific business location,
  • Complete revocation of licenses for a business to operate.

No business wants to find themselves without a license to operate when a little extra legwork to comply with the new Florida E-Verify law could have easily prevented it.

How To Simplify the E-Verify Process with Digital Form I-9 Compliance Software

One of the most overwhelming aspects of the Form I-9 and E-Verify process for employers is that it requires a great deal of information processing, which can lead to costly errors. However, employers may find that using digital I-9 compliance software can provide two key perks when it comes to also using E-Verify for employee work eligibility verification:

  1. Accuracy. Digital compliance software is designed to help employees and employers complete an I-9 form with minimal chances of human error. This is key as the information entered digitally into a Form I-9 is then used to auto-populate E-Verify program fields. The minimization of human error in one program leads to the same in E-Verify.
  2. Efficiency. To fill out a Form I-9 for an employee by hand and then manually enter information into an E-Verify case can be time consuming because it is twice the work, something many employers just don’t have time for. By using a digital Form I-9, it allows that information to be seamlessly transferred to E-Verify case fields without much extra effort. The software can save employers valuable time in the long run.

Any business in Florida should consider incorporating digital I-9 software that integrates with E-Verify into their hiring processes to ensure compliance and avoid common mistakes.