E-Verify and Form I-9 Understanding Employment Eligibility Verification and Best Practices for Employment and Immigration Compliance

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1 E-Verify and Form I-9 Understanding Employment Eligibility Verification and Best Practices for Employment and Immigration Compliance

2 What is E-Verify? E Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. E Verify works by allowing participating employers to electronically compare employee information taken from the I 9 Form against more than 455 million records in SSA's database and more than 80 million records in DHS' immigration databases. Results are returned within seconds. If the information matches, that employee is eligible to work in the United States. If there's a mismatch, E-Verify will alert the employer and the employee will be allowed to work while he or she resolves the problem 1. Does E-Verify Replace Form I-9? No. E-Verify does not replace the legal requirement to complete and retain Form I-9, the Employment Eligibility Verification. E-Verify confirms the employment authorization of new hires based on the information provided on the Form I-9. Form I-9s must be retained and stored in either paper, electronic, or microfilm/microfiche format for auditing purposes. Who is Required to Participate? E Verify is mandatory for all federal contractors and subcontractors. Some state and city governments have E-Verify mandates for government agencies and/or contractors. Visit for an up-to-date map of all active and proposed E-Verify legislation at the city, county, state, and federal level. Why Should Non-Mandated Companies Consider Participating in E-Verify? E Verify is the best means available for determining the employment eligibility of new hires and the validity of their Social Security Numbers. E Verify virtually eliminates Social Security mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and ensures that U.S. employers maintain a legally compliant workforce. What is the Required Timeframe for Conducting an Employment Eligibility Check on a Newly Hired Employee? The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form 1

3 I 9. The employer must initiate the query no later than three business days after the new hire's actual start date. An employer may initiate the query before a new hire's actual start date; however, it may not pre screen applicants and may not delay training or an actual start date based upon a tentative non confirmation or a delay in the receipt of a confirmation of employment authorization. An employee should not face any adverse employment consequences based upon an employer's use of E Verify unless a query results in a final non confirmation. In addition, an employer cannot use an employment authorization response to speed up an employee's start date. How are E-Verify Mandates Enforced? Immigration and Customs Enforcement (ICE) 2, the principle investigative arm of the U.S. Department of Homeland Security, is responsible for enforcement. ICE calculates an organization s fine by determining the percentage of I-9s containing significant errors: Percentage of Fine/Violation Violations 0-9% $ % $ % $ % $ % $770 50% and Over $935 What is a Form I-9? Form I-9 helps employers to verify individuals who are authorized to work in the United States. All employees hired after November 6, 1986 are required to complete a Form I-9. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9. 3 In the News In 2012, the U.S. Immigration and Customs Enforcement (ICE) issued 3,004 audits to businesses nationwide as an initiative to enforce employment and immigration compliance. Of those audits, 238 employers were arrested and there were $13,000,000 in Final Order Fines. With the recent influx of Notices of Inspections (NOIs), companies across the nation may be left wondering Who s Next? From I-9 basic requirements to storage & NOIs, this paper will offer best practices to prevent Form I-9 violations as well as tips on compliance USCIS: Employment Eligibility Verification

4 Glossary of Terms Below are some helpful glossary terms to reference when reading about Form I- 9 compliance: IRCA The Immigration Reform and Control Act: makes it unlawful for an employer to hire any person who is not legally authorized to work in the United States, and it requires employers to verify the employment eligibility of all new employees. USCIS The U.S. Citizenship and Immigration Services: the government agency that oversees lawful immigration to the United States of America. NOIs ICE DHS OSC DOL Notice of Inspections: administered prior to an audit to determine whether or not a company is complying with employment eligibility verification laws and regulations U.S. Immigration and Customs Enforcement: the largest investigative arm of the Department of Homeland Security Department of Homeland Security: is primarily responsible for protecting the U.S. from terrorist attacks and natural disasters Office of Special Counsel for Immigration-Related Unfair Employment Practices: is a section within the Department of Justice's Civil Rights Division that enforces the antidiscrimination provision of the Immigration and Nationality Act Department of Labor: is responsible for occupational safety, wage and hour standards, unemployment insurance benefits, and re-employment services Where can I access a Form I-9? A PDF version of the form is available for download from the U.S. Citizenship and Immigration Services (USCIS) Web site at How long do I have to complete each section of a Form I-9? Section 1 At the time of hire, all employees must complete Section 1 of form I-9 in its entirety. If the employee is not able to complete Section 1 without assistance or if he or she needs the form translated, a preparer or translator must read the form to the employee and have the employee sign the form in the appropriate place. In addition, the preparer or translator must also complete the Preparer/Translator Certification block on the form. Section 2

5 After the employee s information has been fully reviewed, the employer must complete Section 2 of Form 1-9 within 3 business days of the first day of work. Section 2 includes establishing the identity and employment authorization of the employee through documentation. The employer must examine one document from List A, or one from List B AND one from List C. In addition, the employer must record the title, issuing authority, number, and expiration date of the document as well as the date of hire and correct information in the verification block. 4 How and where can I-9 s be stored? Employers must retain completed Forms I-9 for either 3 years after the date they hire an employee, or 1 year after the date employment is terminated (whichever is later). The forms can be stored 4 possible ways: Paper, Microfilm, Microfiche, or Electronically. Whichever method you choose, remember that the Forms I-9 must be readily accessible within 3 days of an inspection request. Paper Retention If your company chooses to retain the forms in paper format you may retain completed forms onsite or at an off-site storage facility. Microform Retention (Microfilm or Microfiche) Forms I-9 may be retained on microfilm or microfiche. When choosing these forms of retention it is important to abide by a few best practices. Select film stock that is capable of preserving the image for the entire retention period, which could be upwards of 20 years. Use well-maintained equipment to provide clear viewings as well as capable of reproducing legible paper copies Electronic Retention An electronic storage system must include the following in order to retain I-9s: Reasonable controls to ensure the integrity, accuracy, and reliability of the electronic storage system Reasonable controls designed to prevent and detect the unauthorized or accidental creation of, addition to, alteration of, deletion of, or deterioration of an electronically completed or stored Form I-9, including the electronic signature, if used An inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used A retrieval system that includes an indexing system that permits searches by any data element The ability to reproduce legible paper copies 5 In addition, there are several best practices to consider when retaining Forms I-9 electronically: All electronic Forms I-9 should be kept private. Ensure that only your authorized HR professionals have access to these records 4 Handbook for Employers: Instructions for Completing Form I-9 p Handbook for Employers: Instructions for Completing Form I-9 p15-16

6 Backup all electronic copies to protect against information loss. If you re using HR software, check if your service provider offers this feature Establish a pipeline and track all Form I-9 actions. From creation to views & updates, there should be a permanent record of all information concerning access to the forms What are Some Ways to Prevent I-9 Violations? Employers can avoid I-9 violations by following a few best practices 6 : 1. Designate a trained HR leader within your company to centralize the Form I-9 process 2. Conduct annual self-audits with aid from your legal counsel or by an external auditing firm 3. Create a line of succession for the HR professionals in charge of I-9 s to ensure that if an NOI is issued the forms can be accessed quickly and efficiently 4. Ensure that all HR professionals are trained on Form I-9 compliance as well as updated on new laws or processes 5. Establish an efficient pipeline between HR and legal counsel in the case of an audit What Happens if I Receive a NOI? DHS, OSC, and DOL give employers 3 days notice prior to inspecting retained Forms I-9. The employer must make Forms I-9 available upon request at the location where DHS, OSC, or DOL requests to see them. If you store Forms I-9 at an off-site location: Inform the inspecting officers of the location where you store them and make arrangements for the inspection. The inspecting officers can perform an inspection at an office of an authorized agency of the United States if previous arrangements are made If you refuse or delay an inspection, you will be in violation of DHS retention requirements What do I Need at the Time of Inspection? If your company does receive an NOI, it s important to know exactly what you need as well as your rights: Retrieve and reproduce only the Forms I-9 and supporting documentation specifically requested by the inspecting officer Provide the inspecting officer with appropriate hardware and software, personnel, and documentation necessary to locate, retrieve, read, and reproduce any electronically stored Forms I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records 6 ICE: Best Hiring Practices

7 Provide the inspecting officer, if requested, any reasonably available or obtainable electronic summary file(s), such as spreadsheets, containing all of the information fields on all of the electronically stored Forms I-9 7 What are the Penalties of Non-Compliance? Failing to properly maintain Forms I-9 can result in fines anywhere from $100 to $10,000 per violation as well as forfeiture of the company s assets. How icims can Help icims offers I-9 and E-Verify as part of its Onboarding Solution through an expanded partnership with Tracker Corporation 8. Customers leveraging icims Onboarding Solution can benefit from a fully integrated system that provides automated and paperless preparation, signing, management, auditing, and storage of I-9 forms, as well as automatic E-Verify submission. The software guides new hires through form completion and virtually eliminates I-9 errors and audit risks through alerts and next-step notifications. To learn more about how icims can help streamline your I-9 and E-Verify processes, call (800) or take a look at an online virtual tour of icims Talent Platform: To learn more about the icims, call or take a look at our demo at: 7 Handbook for Employers: Instructions for Completing Form I-9 P