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.
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.
Electronic Form I-9 systems have brought efficiency and ease of oversight to the processing, storing, and purging of Forms I-9 like no paper system could ever hope to do. With paper Form I-9 records they were typically just stored away, rarely revisited, and likely never purged. Electronic I-9’s have made it incredibly simple to maintain proper long term storage of these files.
The reports available to the Program Administrator, when used effectively can help your organization stay ahead of any compliance issues, including retention and purging.
Did you know each time you terminate an I-9, Lookout automatically calculates a retention date for that I-9. You don’t have to determine if you need to keep it for 1 year or 3 years. That is all done for you. But why bother? You might be thinking “better to have it and not need it, than need it and not have it.”
Well, that old adage doesn’t always hold true. If those records are lost or stolen, your organization could potentially be liable for any resulting identity theft. And in an I-9 audit you can be fined for mistakes and errors even on forms that you should have purged.
It is very important that your Program Administrator understand and be trained on all areas of Form I-9 management, including retention and purging.
If you require instruction or assistance on how to perform these tasks in the Lookout system, please contact Customer Support at 713-668-6200 x2. We look forward to the opportunity to assist you in your I-9 processing.
As many of you know, U.S. Citizenship and Immigration Services (USCIS) announced the newly revised Form I-9 on March 8, 2013. The announcement requires implementation of the new Form I-9 by May 7, 2013.
During this past week, many of you have asked questions related to the future release and use of Form I-9. The following information is provided in an effort to keep you informed of the progress made thus far.
Q: When will the revised Form be released?
Lookout’s development efforts began in November based upon the Proposed Version of the Revised Form. However, the Final Version approved by the government included significant changes in Section 2 List A. Designs and plans to accommodate the changes announced on March 8th are still progressing. Currently Lookout anticipates release in early April.
Q: Will Lookout customers receive advance notice of the release date?
Q: How much advance notice will customers receive before the release to the Lookout system?
Our goal is to provide at least a one week notice before the release of the new form.
Q: When should the employer begin training related to the new Form I-9?
Employers may choose to provide Revised Form I-9 training at any time.
Q: Will Lookout provide training related to use of the Lookout application as it relates to the new Form I-9?
Yes, a training date will be announced next week. This training will highlight the added fields and the rules associated with them.
Q: What changes should users expect to see when completing the new form I-9 via the Lookout system?
The Lookout system Form I-9 will look like the paper version of the revised form. Logic will be added to our “run checks” feature to account for the new business rules associated with the changes.
We hope that this information assists you in your planning. We appreciate your patience as we work to complete the task at hand. Please contact customer support, email@example.com, if you have any questions or concerns related to this notification.
Lookout’s Development Efforts Already Underway
U.S. Citizenship and Immigration Services (USCIS) announced the newly revised Form I-9 is now approved for use. The announcement includes an implementation grace period through May 7, 2013 to allow employers to revise their internal processes to incorporate the use of the new form. The new Form I-9 has extended Section 1 to request additional information from the new hire. The additional information requested includes, telephone, email, and foreign passport information, where applicable. In addition, the Form I-9 itself now consists of 2 pages. The Federal Register Notice (78 FR 15030) indicates that the new Form I-9 may be obtained by visiting the I-9 Central website, www.uscis.gov/I-9Central. USCIS has also released a new corresponding Handbook for Employers (Form M-274) as of March 8, 2013.
Lookout’s development efforts are well underway. Lookout Services’ development team began programming these changes late last year with the expectation that the revised Form I-9 would eventually receive approval. However, initial review indicates that USCIS has made additional changes to the revised Form I-9 since the draft Form I-9 was issued in October of 2012. Our business and development team will be reviewing these changes and planning for their inclusion in our development efforts. However, Lookout is committed to publishing the new Form I-9 before the grace period ends. Lookout will continue to provide updates as the final development effort progresses.
As I-9 Program Administrators, you know the challenges presented by the human element. Electronic Form I-9 systems with real-time error-checking go a long way toward eliminating the issues created by the human element. But, even with error-checking software in place, there are still certain pitfalls that can occur.
- Your I-9 Processor ignores the system alerts and prompts resulting in an erroneously completed Form I-9.
- Your I-9 Processor does not know what to do when the new hire fails to present documents within 3 days of hire.
- Your I-9 Processor does not know what to do with an incomplete Form I-9 if the new hire quits before the I-9 is completed.
- Your I-9 Processor does not know what to do with an incomplete Form I-9 if the new hire never begins work.
Due to unique factors in your organization, many of these pitfalls require management and legal input to determine the best action to take. These determinations should be described in an I-9 policy manual and taught to I-9 processors during training sessions. In addition, a Program Administrator should be responsible for oversight and management of the organizations I-9 processing and policy enforcement.
Once again, electronic Form I-9 systems add efficiency to the oversight of Form I-9 processing. The ability to pull reports and search for specific events saves significant time. However, if your Program Administrator is not utilizing the reports regularly and effectively, your organization may find compliance issues continue to be overlooked.
Administrators should perform the following functions on a systematic basis to insure I-9 Policy and Program effectiveness.
- Review all Form I-9s containing errors
- Delete I-9s for new hires who never began work
- Terminate I-9s for new hires who failed to provide documents to complete I-9
- Resolve any curable errors, i.e., typos, conflicts of status, etc, for active employees
- Compare Payroll records to Form I-9 records
- Update Termination dates
- Purge Retention Expired Form I-9s
If you require instruction or assistance on how to perform these tasks in the Lookout system, please contact Customer Support at 713-668-6200 x2. We look forward to the opportunity to assist you in managing the human element in your I-9 processing.
Here are 5 things that you can do as the year comes to a close to evaluate compliance with E-Verify and Form I-9. See how your end users are doing and how your Compliance Program performed in 2012. We invite you to contact us for assistance with these or any other matters you discover during your review.
- Review all Open E-verify cases: Identify any cases which have been open for more than 10 days, discover the reasons for untimely completion, resolve issues, and complete cases.
- Update Termination Dates: Request termination dates from payroll, and batch process termination dates to I-9 records.
- Match I-9s and Payroll: Request employee list from payroll, batch process Matching I-9 records against employee list.
- Review Three Days Section 2 Unsigned Report: Identify unsigned I-9 Records, discover the reasons for untimely completion, resolve issues, and complete signatures.
- Review Retention Expired Records: Identify retention expired records using the Retention Report, then notify Lookout for assistance with record removal.
Although the regulations for the Electronic Generation, Signature, and Storage of Form I-9 have been in existence for several years, Department of Homeland Security recently released a Memorandum which provides guidance to field officers conducting audits of Forms I-9 created in electronic I-9 systems. This guidance has prompted auditors to engage in not only an audit of Form I-9, but also a review of how electronic generation, signature, and storage are accomplished in the Form I-9 system.
Employers may be asked to complete questionnaires which provide insight into the workings of the electronic system. Auditors are also likely to request a real-time demonstration of the Form I-9 process using the electronic system. Both requests are designed to allow the auditor to assess the electronic system’s compliance with the regulations.
The regulations governing electronic processing of Form I-9 are found at 8 CFR section 274a.2(e), (f), (g), and (i). These requirements are also addressed in the Handbook for Employers (M-274) beginning on page 24.
In March, USCIS proposed some significant changes to Form I-9. These changes included adding employee phone number and email as optional fields in Section 1. The proposal also called for requesting additional details in Section 1 for Aliens Authorized to Work in the United States, such as foreign passport number and country of issuance. A significant number of comments were received during the comment period. Common submissions signaled concerns about employee confusion during Section 1 completion and the additional time required for processing the two page form. As of this writing, the proposed form remains pending. USCIS has instructed employers to continue using Form I-9 (Rev. 08/07/09) Y despite the form’s expiration date of 08/31/2012.