By Corey Preston
Many of the provisions of the immigration reform bills being considered by Congress are aimed at increasing opportunity for foreign workers and immigrants, and for employers seeking to hire those individuals, but one of the provisions in the bill passed by the Senate creates a new mandate for employers.? Under the Senate bill, all employers would be required to transition to the E-Verify authorization system within the next five years.? E-Verify is an online system by which employers can compare a prospective employee?s I-9 form with government records to determine employment eligibility.? The system is currently voluntary for most employers (e.g., businesses with government contracts are often required to use E-Verify), but it would become mandatory under the Senate bill.? Failure to comply with the E-Verify requirements would result in potential civil fines, which are increased in the Senate bill over the current fines for I-9 non-compliance by employers.
While the potential requirement of E-Verify down the road is an important consideration for businesses, employers should also be aware that the current employment verification requirements?through standard I-9 forms?are stringent, and carry potentially serious punishments.? Even if your business does not actively solicit foreign workers, and even if you are confident that all of your employees are authorized to work in the United States, I-9 compliance is essential.
Some issues to consider, in ensuring that your company is I-9 compliant under the current law, include:
- Consequences of non-compliance: Simply failing to comply with the requirements of completing and storing I-9 forms for all of your employees carries fines of $110 to $1,100 per violation.? This means that if you have 50 employees, and fail to store the I-9 forms for those employees, you could face tens of thousands of dollars in fines.? The consequences for hiring an unauthorized worker are even more severe?between $375 and $16,000 per offense?but good faith compliance with the laws, and no knowledge of the lack of authorization, are an effective defense against those charges.
- Complete an I-9 for all employees: Every new employee your company hires must complete Section 1 of the I-9.? Even when you are certain of an employee?s authorization to work, you must keep a completed I-9 on file to protect against fines for non-compliance.
- I-9 forms must be completed within three days of employee start date: The employee must complete Section 1 of the I-9 and provide the requisite identifying documentation, and the employer must complete Section 2, confirming those documents, within three days after the employee begins work.? The employer must physically examine each document, and determine if it reasonably appears to be genuine and relates to the person presenting the document.
- Some employees will require re–verification😕 While most employees only require one verification, when an employee presents documents which indicate that the individual?s immigration status will expire, the employee?s status will have to be re-verified before the stated expiration date.? It is important to note that expiring immigration status does not indicate that the employee will no longer be authorized to work, but rather only requires that the employee submit new documents, as outlined in lists A, B and C of the I-9, to be verified by the employer prior to the expiration date.? Employers who encounter documentation that does indicate expiring status would be wise to create a reminder of the expiration date, so as to complete the re-verification before that date.
- Retention Requirements: Employers must retain completed I-9 forms for each employee for the entire time that employee is employed.? I-9 forms may be disposed of either three years following the employee?s hire date, or one-year following the employee?s termination, whichever is later.? The forms may be stored in electronic format, paper format, or microform.
- I-9 Audits: The Department of Homeland Security, the Department of Labor, and the Department of Justice Office of Special Counsel for Immigration Related Discrimination may request an audit of a business?s I-9 documentation at any time, with three days notice.? While the number of I-9 audits are still relatively few, that number has increased in recent years, from about 500 in 2008, to more than 3,000 in 2012.? Employers must present all stored I-9 forms to auditors, as well as any supporting documentation.
- Discrimination prohibited: Employers need to be aware that there are also civil punishments associated with any discrimination on the basis of citizenship or immigration status, national origin, retaliation for complaints of discrimination, or unfair practices with regards to I-9 requirements.? That last category, also known as ?document abuse,? prohibits employers from differentiating between employees with regard to I-9 completion.? An employer may not, for instance, require an employee to produce more documentation than is required by law, reject documents that appear to be genuine, or treat groups differently for any reason.
- Reference materials: U.S. Citizenship and Immigration Services has a comprehensive handbook regarding I-9 compliance available online at: http://www.uscis.gov/files/form/m-274.pdf.
Employers are encouraged to conduct an internal (self) audit of their I-9 documents at least every two years, and preferably every year.? A disciplined approach to I-9 management will help identify compliance issues and inform you of training needs, as well as mitigate risk.? Additionally, Colorado employers are reminded of Colorado?s Affirmation Form that must also be completed, though employers have 20 days from the employee?s start date to do so.