I-9 Checklist - Tips For Employer Compliance

by Angelo Paprelli

The Form I-9 (Employment Eligibility Verification) - issued by U.S. Citizenship and Immigration Services - must be maintained by all employers. Since November 1986, every new hire, whether the employee is a U.S. citizen or a foreign national, must complete section 1, attesting to the individual's identity and employment eligibility, on the first day of employment. Within the first three days of hire, employers must complete section 2 of the I-9 by examining original documents of identity and employment authorization, recording the starting date of employment, noting the document(s) number(s) on the form, and certifying by signing under penalty of perjury that the documents examined appear to be genuine and relate to the employee. Employers must also refrain, however, from engaging in prohibited acts of discrimination against new hires and applicants for employment, such as, by basing employment decisions on citizenship or national origin status, or insisting that employees provide only specific types of identity documents or work permits.

Recently, the federal government has refrained from pursuing civil penalties and instead has used the avenue of criminal law enforcement to prosecute employer violations of immigration laws requiring that businesses refrain from hiring or continuing to employ workers whom the employer knows or should know lack the right to work in the United States. For this reason, prudent employers should follow a set of steps to confirm that their compliance obligations under the immigration laws are fulfilled. This is especially important in the post-Enron era when Sarbanes-Oxley Act compliance and damage to reputation are of heightened concern. This checklist can therefore serve as a starting point for employer immigration compliance.

Current I-9s
As long as no formal enforcement proceedings are pending or likely, employers should remove from their files and discard original I-9s no longer subject to the I-9 "retention rule" (I-9s may be destroyed after three years from date of hire or one year from date of termination, whichever is later)

Employers should perform voluntary audits of all or a representative sample of retained I-9s to measure compliance practices;

As a measure of good faith compliance and to mitigate potential fines, employers should correct I-9s with errors and missing information, keeping original I-9s and initialing changes with the date of correction.

Establish a tickler system for the timely "reverification" of employment eligibility for foreign-national employees who have time-limited work permission.

Employers should take prompt action if notified by the Social Security Administration that a discrepancy exists between employer-provided records on specific workers and the agency's own data (the so-called SSA "no-match letter"). An employer acts appropriately in this situation by checking the employer's records, providing the employee an opportunity to seek an official correction, or if unable to verify and reconcile the discrepancy, considering (on advice of counsel) whether termination of employment is required.

If numerous no-match letters are received, employers should consider reverifying the entire workforce but take precautions to avoid unlawful immigration-related employment discrimination.

Employers should decide whether to:
Copy or refrain from copying original documents of identity and employment eligibility. On the one hand, copying creates a paper trail making it easier for the employer and the government to review prior compliance actions, and for the employer to make corrections to I-9s, if required. On the other, maintaining added paperwork is burdensome and costly, and requires that employers act uniformly by copying all original documents reviewed on all employees for I-9 purposes and keeping the copies with the I-9s.

Maintain I-9s in paper, microfiche or electronic format. Employers should consider whether to maintain required records in paper format or use alternative technology. Immigration regulations now allow electronic storage and electronic signatures for I-9s. While using digital technology has its advantages in reducing paper storage costs, the regulations pose added requirements for assuring data integrity, facilitating audits and easing the government's investigative burden.

Participate in the new U.S. Citizenship & Immigration Enforcement ("ICE") Programs, the Electronic "Basic Pilot" Verification and/or "IMAGE". The Basic Pilot allows an employer to check the employment eligibility of foreign nationals (new hires only) through the government's immigration database. The signing of a Memorandum of Understanding is required. IMAGE is the ICE Mutual Agreement between Government and Employers, a plan for voluntary self-policing and the submission of annual immigration audits first by the government and then by qualified third-party entities. See: http://www.ice.gov/partners/opaimage

Future Hires
Set up a system for handling future I-9s.
Complete Section 1 of the I-9 on the first day of work for all new hires.
Complete the rest of the I-9 within three days of the first day of work.
Consider pre-completing Employer's Business Name and Address in Section 2 and pre-fill Employer Authorized Representative's Name and Title if it is always the same person completing the Employer Certification.
Do not accept copies of work or identity documents.
Make sure all new hires complete I-9s in person before a company official (in order to confirm identity) or an authorized agent (with respect to whom the employer must take full responsibility for any I-9 mistakes or omissions.)
Company Practices
Engage in regular training for employees handling I-9 completion.
Establish an I-9 routine and follow it consistently for every employee.
Create a system for tracking dates of hire and termination of employment in order to purge I-9s from current storage to minimize liability (assuming no actual or threatened government investigation exists or is likely).
Consider establishing policies (in consultation with employment law counsel) for future compliance and ongoing voluntary audits.

INFOLINK SCREENING SERVICES ROLLS OUT VASTLY EXPEDITED AND IMPROVED ELECTRONIC

With a click, companies can easily pre-populate the Form I-9 enabling faster completion. This electronic I-9 Form virtually eliminates human error while simultaneously creating a completely paperless I-9 process.

E-Sign Act compliant click-to-sign solution
Chatsworth, Calif., October 17, 2006 – InfoLink Screening Services, a subsidiary of Kroll Inc., working closely with Form I-9 Compliance, LLC, today announced that it has rolled out a new version of InfoLink's 'Form I-9 eSolutions' process which greatly expedites compliance with the Immigration Reform and Control Act (IRCA) – the government mandated employment eligibility program designed to identify unauthorized illegal workers. Highlights include the ability to pre-populate the Form I-9 with one click, an electronic signature using an E-Sign Act compliant click-to-sign solution, and verifying the employment eligibility of each new hire.

The Form I-9 eSolutions service substantially fills gaps in earlier processes via sophisticated error detection and 'smart form' technology. The process not only enables employers to confidently hire new employees in full compliance with the law, but also complies with existing and pending comprehensive immigration reform legislation. The negative consequences to businesses in violation of these laws are increasing.

Key highlights of InfoLink's new process include:

• Error-detecing electronic Form I-9 which virtually eliminates processing errors;
  
• Fast processing – InfoLink's e-Form includes automatic pre-population of sections, allowing completion, electronic signature, and electronic submission within seconds;
  
• Secure, paperless Form I-9 storage allowing for anytime, anywhere access for updating or government inspection;
  
• Automated Management alerts for expiring work authorizations enabling employees to renew and legally continue working without interruption;
  
• An 'Add eDocuments' feature which allows employers to attach related I-9 documents to stored I-9 Forms;
  
• Extensive Multi-level Management reports including pending and archived I-9 Forms, pending and archived right to work verifications, expiring work authorizations, and re-verifications;
  
• Optional features which instantly transmits employee data to the Social Security Administration and Department of Homeland Security to verify if that employee has a right to work in the United States.
  

"Aside from the important legal compliance aspects of the new electronic process, employers will find a number of benefits including less time demands on human resources staff, improved accuracy of payroll and tax reporting, and the ability to form a more stable workforce," says Barry Nadell, President of InfoLink Screening. "Additionally, this system protects jobs for individuals who have a legal right to work in the U.S."

About InfoLink Screening Services: InfoLink Screening Services is a leading provider of employment background checks, drug testing, physical exams and Form I-9 eSolutions. Thousands of companies nationwide rely on InfoLink before they finalize their hiring decisions. InfoLink's exceptional service, fast turnaround, legal compliance and accuracy enable companies to Hire with Confidence®. InfoLink operates as part of the Background Screening division of Kroll, the global risk consulting company. For more information, visit www.infolinkscreening.com or call 800-990-HIRE (4473).

About Kroll: Kroll, the world’s leading risk consulting company, provides a wide range of investigative, intelligence, financial, security and technology services through offices in more than 65 cities in over 25 countries. Kroll’s Background Screening division is comprised of InfoLink Screening Services, based in Chatsworth, Calif., Kroll Background America, Inc., based in Nashville, Tenn., and other Kroll subsidiaries in Canada, the United Kingdom, Poland, India and South Africa. In the United States, the Background Screening division provides employee and vendor background investigations and identity theft services. It serves a wide range of corporate, government and non-profit clientele, most notably those in financial services and highly regulated industries such as health care and transportation. For more information, visit www.kroll.com.