American businesses are increasingly understanding the importance of being Form I-9 compliant. With the incidence of Immigration and Customs Enforcement (ICE) worksite investigations estimated to have quadrupled in recent years, many companies are diligently reviewing their Form I-9 compliance protocol to ensure that the employees they hire are eligible to work in the U.S. and the correct paperwork is both completed and in order. This protocol often includes the use of E-Verification (through E-Verify) and digital I-9 compliance software.
What is E-Verify?
E-Verify is a government program accessed via the Internet that can be used to compare an employee’s Form I-9 information against records accessible by the Department of Homeland Security and the Social Security Administration to ensure the employee’s eligibility to work.
For the most part, E-Verify is based off of information collected via the Form I-9. For that reason, it is important to first touch on this legal form required by federal law and how it works.
The Form I-9 was created to help establish an individual’s eligibility to work within the U.S. There are three main sections for this form:
- Section 1: The first section requires an employee to fill out the requested information on the Form I-9 in full and then sign it to attest that the information provided is true. This must be done by the employee’s first day of employment. If the employee presents false information in this section, it could result in perjury fines. Employers must simply ensure that the employee completed the section.
- Section 2: This second part of the Form I-9 mandates that employees turn in identification documents required by the Form I-9 to the employer. The employer is then responsible for examining and verifying the authenticity of the documents provided. Both the employee and employer’s responsibility for this section must be completed within three days of an individual’s first day of work. If an individual presents fraudulent documents, it will likely result in perjury fines.
- Section 3: The third and final part of the Form I-9 is the employer’s responsibility. This section is used where an employee has a legal name change, an employee’s work authorization expires, or if an employee is rehired within three years of the date listed on the Form I-9.
Although the Form I-9 may sound simple and direct, some companies struggle with the complexity of it. To assist employers with this document, the United States Citizenship and Immigration Services created a how to manual of sorts titled Handbook for Employers M-274. In addition to this resource, and because of its length (116 pages) and complexity, it is not unusual for companies to also enlist the help of digital I-9 compliance software. These software programs can lead users through the mass of options to help catch commonly made errors such as incomplete fields or missing signatures and can also provide timely action item reminders.
Should business owners sign up for E-Verify?
In many cases, signing up for E-Verify is optional. However, there are some situations in which employers may be required to enroll in E-Verify, including businesses that:
- Participate in federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause
- Receive a mandate to do so after a legal ruling is handed down
- Reside in a state that requires businesses to participate
The E-Verify system is designed to give employers a little extra peace of mind when it comes to authenticating a potential employee’s eligibility to work in the U.S. Employers who wish to sign up for E-Verify need only enroll. A good I-9 compliance software program will aid in the signup.
Enrollment for E-Verification is open to employers in all fifty states, Puerto Rico, the U.S. Virgin Islands, the District of Colombia, the Commonwealth of Northern Mariana Islands, and Guam.
How can employers sign up for E-Verify?
Employers that either choose to sign up or are mandated to sign up for E-Verify can visit the Department of Homeland Security’s website for step by step instructions that will lead them through the enrollment process. Enrollment can be completed online by signing a document that confirms the understanding of the system as well as the terms of agreement. Alternatively, a higher level I-9 software will handle the sign-up for the employer.
How to Do E-Verification
Once an employer has signed up online or with a I-9 software provider, the instructions on how to do E-Verification become clearer. After the agreement is signed, the employer will have access to a user manual and tutorials that will provide them with step by step instructions. Employers are typically required to complete the tutorial before open access to E-Verify is granted.
Once an employer has enrolled in E-Verify, completed the tutorial, and has possession of the completed Form I-9 for an employee, an employer is ready to begin using the system. As soon as an employee completes the Form I-9 within the time guidelines, employers can enter the information from the first and second section into E-Verify and can usually expect an initial response in seconds. Again, a comprehensive I-9 software program will include the E-Verify component will preclude having to re-enter the employee’s information.
E-Verify cannot be used to discriminate, so employers must use the system for all new hires whether they are citizens of the U.S. or not. E-Verify cannot be used to discriminate against an employee’s citizenship status, national origin, or race.
It is worth noting that E-Verify cannot be used to check a potential employee’s criminal background or immigration status. E-Verify only verifies an employee’s eligibility to work within the U.S.
Employers that do not have the dedicated staff or time to do due diligence with the E-Verify system may choose to enlist the assistance of an E-Verify employer agent. These agents can help employers determine a potential employee’s work eligibility through E-Verify as well as help the business stay compliant with state laws. These agents typically wear many hats and can offer companies a number of additional services. It is worth mentioning that the federal government does not regulate the agents’ fees or certification.
Why Compliance Matters
The Form I-9, E-Verify, and even digital I-9 software are designed to help businesses stay in compliance with federal laws. The 1986 Immigration Reform and Control Act requires businesses nationwide to verify all employees’ legal eligibility to work in the United States. Not following the mandates set in law by the federal government could result in a company being found non-compliant and facing costly fines.
Fines for non-compliance are assigned per violation. If a company is not being diligent in Form I-9 protocol, it is feasible that dozens of employees or more could be found non-compliant, which may equal substantial dollar signs that could negatively impact a company’s profit margin. In addition to monetary penalties, some businesses could be in danger of losing at least part of their workforce. Other businesses may have violations so severe that their business license could be suspended. Often times, violations catch the attention of various media, which is generally very harmful to the employer.
For the most part, violations are typically classified as criminal or civil.
Criminal violations can be issued if it is discovered that a company has a documented pattern of fee-based recruiting, referring, or hiring of individuals that are not authorized to work in the U.S.
Civil violations tend to cover a broader scope and may apply to situations such as the following:
- Document fraud or abuse
- Noncompliance pertaining to employment verification
- The hiring and continual employment of those not eligible to work in the U.S.
- Failed notification of authorities regarding follow-up confirmation for an employee’s work eligibility
By learning about the Form I-9 and the importance of staying compliant, businesses will feel empowered with the E-Verification process.