Are You an HR Person With an I-9 Mess on Your Hands?

While you may be a very capable Human Resources expert concerning Form I-9 issues, what if your predecessor was not?  Your company may be at tremendous risk because ICE auditors will not only look at your current I-9 forms, but will also request all of your terminated employees’ forms for the past 3 years.

How many costly I-9 compliance mistakes have been made that you may not be aware of?  We encourage you to take a look at your I-9 files on a regular basis.  You may be shocked at what you find.

If you have inherited an I-9 mess, it may be quite difficult to take those concerns to your boss.  However, you must take a proactive approach to make a good-faith effort to correct the documentation in order to avoid serious government fines.

Form I-9 Compliance Action Steps

1. Realize the Form I-9 is not as simple as it may appear and that fines for basic clerical mistakes start at $110.00 per form, per employee.
2. To help your boss understand the serious consequences of Form I-9 violations, emphasize employment eligibility verification is a legal requirement and non-compliance could result in substantial fines for the company.  The best way to avoid disaster is to focus on a full scale clean up of company I-9 procedures.
3. Get help!  You probably wouldn’t think of auditing the company’s tax records by yourself and you certainly should not consider auditing I-9 compliance by yourself. Over the years, the requirements of the Form I-9 have changed and it is important that any retroactive attempt at compliance be done within the constraints of the law.
4. Consider electronic completion and storage options.  This may be the best approach to cleaning up the I-9 mess in your file cabinets.
5. Identify and document “best practices” for moving forward in full compliance.  A qualified I-9 specialist can help develop the right procedures and practices for your business.

Aggressive Form I-9 Enforcement Strategy

Is Your Company Prepared?

The sad truth is most U.S. employers are ignoring the threat of immigration audits.  When it comes to Form I-9 compliance, E-Verify, and state laws, many corporate officers are taking a “head in the sand” approach or are willing to “roll the dice” and bet their business will not be a target of an ICE (Immigration and Customs Enforcement) investigation.  This denial can be a very costly mistake.

ICE has promised to take a more aggressive approach to enforcement and they are delivering!  A few examples of this new Form I-9 enforcement strategy include reports in The Houston Chronicle about Texas employers who have been fined more than $600,000 since the fall of 2009 for I-9 violations.  One employer was fined $34,000 for failure to complete any Forms I-9.  Other Texas employers were accused of more serious issues of knowingly hiring unauthorized workers.

The New Jersey Record reports that more than 2 dozen businesses face fines totaling roughly $1.25 million after ICE investigations revealed Form I-9 errors.  This beefed up enforcement is taking place across the country in businesses just like yours.  No company is immune.  All businesses are fair game for an ICE inspection.

Costly non-compliance fines could devastate your company.  Being prepared for an ICE inspection before immigration agents serve your business with a Notice of Inspection is essential.  Compliance is not just a simple matter of having I-9 forms for all employees.  Form I-9 compliance involves a comprehensive corporate compliance plan including written protocols, regularly scheduled Form I-9 compliance audits, as well as defined best practices. Immigration compliance involves strategic planning and laser focus.

Failing to prepare is preparing to fail.  “Failing” an I-9 inspection is a costly lesson to learn, one that could bankrupt your business and ruin your company’s reputation.

Employment Verification Laws

The times they are a changin’….

As President Obama pushes to reform the current immigration system, employers are under increasing pressure to follow Federal law requirements concerning hiring authorized workers while at the same time carefully monitoring State employment eligibility law as well.  Many people are following the debate about Arizona’s new immigration legislation while in South Carolina, one of the toughest employer sanctions laws in the country has slid in under the radar and gone mostly unnoticed by anyone not doing business in the state.

Employers across the country should be paying very close attention to Form I-9 requirements and E-Verify laws.  In just the last few months, several significant changes have taken place that impact how employers verify the identity and work eligibility of the people they hire.

• A newly redesigned Green Card (Permanent Resident Card).
• Changes to the Employment Authorization Document to increase document security have been implemented.
• E-Verify has been redesigned and new tools have been added.

E-Verify and the “Hire Date”

Perhaps the most significant change is what is being termed the “Thursday Rule” which now gives employers until the 4^th business day to utilize E-Verify.  Until recently the directive has always been 3 business days from the date of hire.

Amid this flurry of change, the Office of the Special Counsel for Immigration Related Employment Discrimination (OSC), had been actively investigating complaints against employers accused of improper use of the Form I-9 and/or E-Verify during the hiring process.  Morton’s Restaurant, Garland Sales, and even Macy’s department store have been accused of identity document abuse by asking new hires to produce more documents than are required for the completion of the Form I-9.

What once seemed to be just one more piece of paper to keep on file is now an albatross around every employer’s neck.  Failing to give the I-9 the attention it demands is costing businesses thousands of dollars.  Many employers mistakenly believe it is enough to have an I-9 on file for every employee.  These employers will ultimately pay the price. Since April 2009, ICE (Immigration and Customs Enforcement) has fined employers over $17 million for non-compliance based on technical and clerical errors on the Form I-9.

Many of these errors could have been identified prior to the ICE inspection had the company obtained an independent 3^rd party audit by a qualified I-9 specialist. An independent 3rd party audit is one of the best tools an employer can utilize to insure complete Form I-9 compliance.  By using an expert independent 3^rd party auditor, a business can take a proactive approach to correcting costly errors, identifying areas of non-compliance, and protecting their business against claims of discriminatory hiring practices.

It is time for every employer to wake up and realize the Form I-9 requires the same attention that tax forms and other legal and compliance issues require.  Failing to use an experienced Form I-9 specialist to assist your company in obtaining 100% compliance is putting your business at unnecessary risk of huge financial penalties as well as a public relations nightmare.   Don’t let the negative results of an ICE inspection of your company be the lead story on your local news!

ICE Makes Good on Worksite Enforcement Promise

A few weeks ago, ICE (Immigration and Customs Enforcement) circulated an internal memo outlining their continued commitment to worksite enforcement by inspecting employers’ Form I-9 compliance.  This week, they are making good on their promise by once again issuing Notices of Inspection to businesses across the country.  So I guess the question you need to ask yourself is “Do you feel lucky – really lucky”?

Unfortunately, a “head in the sand” approach is what many businesses are taking toward Form I-9 compliance.  They figure they will never be the target of an ICE inspection…so why invest the time and money to become 100% compliant?  The short answer is simple – because IT’S THE LAW.  For the same reasons a business hires a professional to service and maintain equipment, consults with an agent to carry adequate insurance, and relies on a CPA to make sure it is paying the appropriate taxes, the savvy business will utilize an expert who specializes in Employment Eligibility Verification to ensure proper Form I-9 compliance.

The Dreaded ICE Inspection

So what happens when a company that has failed to take a proactive approach to I-9 compliance is inspected by ICE?  Once a company has been selected for an I-9 audit, an ICE officer visits the business and serves a Notice of Inspection ordering the company to produce all of their current employees’ I-9 Forms, payroll records, business license, and other documents.  ICE will also ask for all Form I-9s for employees terminated over the past 3 years. The company is given 3 business days to send all of the requested information to the ICE forensic auditor.

At the completion of the forensic audit, ICE issues a Notice of Technical Violation to the company and by law must allow the employer 10 business days to repair the I-9 Forms and resubmit.  An astute employer will work with a Form I-9 specialist to be certain the forms are repaired appropriately, saving the company thousands of dollars in civil penalties associated with technical violations.  Working with an expert during this part of the audit will not only save the company thousands of dollars, it may also help the business prove “good faith” in attempting to comply with Form I-9 requirements in the future.

Form I-9 Compliance  – Take Action Today

We encourage employers to take a proactive approach to Form I-9 compliance.  Taking the time to assess compliance before ICE visits will save an employer thousands of dollars in fines, the public relations nightmare associated with bad press from an immigration audit, and the stress of going through the cumbersome I-9 audit process.

ICE Renews Commitment to Punish Employers

Most employers are not aware that several days ago Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, sent a copy of its Strategic Priorities for Fiscal Years 2010-2014 to its employees.  The memo has not been made public, but you can read it here - ICE Strategic Plan.

The ICE Strategic Plan outlines the priorities on 3 very important efforts:

1)      Preventing terrorism and enhancing security

2)      Securing and managing our borders

3)      Enforcing and administering our immigration laws.

As part of the goal of enforcing our current immigration laws, ICE promises to enforce immigration related employment laws in order to create a culture of compliance among employers.

The strategy is a 2-pronged approach.  It includes aggressive criminal and civil penalties against employers who knowingly violate immigration laws, and continues to implement programs such as E-Verify (verifies employment eligibility to work in the United States) and IMAGE.

ICE is also promising to hire additional auditors to focus on employer’s Form I-9 compliance.  Based on government audits, ICE has collected over $15,000,000 in fines from employers, many who have never knowingly hired an illegal worker and made only clerical mistakes while completing the Form I-9, Employment Eligibility Verification.

It is important for every employer to understand that government enforcement of Form I-9 regulations is not going away anytime soon.  Developing best practices, learning about 3^rd party Form I-9 audits and seeking qualified advice concerning I-9 compliance is imperative in this new era of enforcement.

Don’t let your company be the next to suffer large fines resulting from an ICE inspection.  It could bankrupt your business!

What Every Employer Needs to Know About the People You Hire

The immigration debate is a hot topic.  Arizona recently passed controversial legislation causing an outcry from both sides of the debate.  Racial profiling, unlawful search and seizure and discrimination are just a few of the terms being bantered about.   Why should this matter to anyone who doesn’t live in Arizona?

It is hard to argue the current immigration system is not broken and I hope people a lot smarter than me are working on solving the problem.  For now, we must live with and work with the system that is in place.  A large piece of the illegal immigration puzzle is the Form I-9, Employment Eligibility Verification.

Using the Form I-9, every employer has the responsibility under the law to verify both the identity and work authorization of every person they hire regardless of that person’s citizenship status. This means filling out the I-9 form for every person hired and inspecting ID and work eligibility documents provided by the new employee.

Of course when the original Form I-9 process was developed in 1986, the ability to easily, quickly, and cheaply produce fake documents was not a huge concern.  However, in the current environment, technology is readily accessible to produce authentic looking documents in a very few minutes.

How Can an Employer Be Sure About the Work Eligibility of Who They Are Hiring?

The answer is “they can’t be sure” – and the law does not require that they are sure.  In fact, there are consequences for employers who refuse to accept documents if they appear to be genuine.  There are also penalties for employers who require certain employees to provide more documents than are required by the I-9 process.  Anti-discrimination laws protect employees from employers who may treat them differently because they sound or look foreign or have a foreign sounding name.

The government is providing more tools for employers to use to help them avoid hiring mistakes.  E-Verify for employers is an electronic verification system run by the Department of Homeland Security in cooperation with the Social Security Administration.  It is free to all employers.  Using information provided on the Form I-9, the employer can access the E-Verify system and check the work authorization of new hires.  Results are returned within a few seconds.

Of course, no system is perfect and E-Verify does not recognize identity theft in about 50% of the cases.  If someone has stolen another person’s identity, E-Verify only “knows” that identity is authorized to work – it cannot determine the person sitting in front of you is not that person.  For the system to work more perfectly, it would need to maintain a current photo of every person in the U.S. and match that information to the employee.  It is doubtful we will see that in the near future.

What Should a Well Intended Employer Do About Employment Elibigility Verification?

• Complete the Form I-9 at the time of hire for every new employee.
• Be sure the employee completes Section 1 carefully and accurately.
• Use the List of Acceptable Documents from the I-9 and carefully inspect the documents provided by the employee.  Record the document information accurately and completely in the document lists in Section 2.
• Use E-Verify for every new hire.
• Treat every person you hire the same, regardless of their name or appearance.

Proper completion and maintenance of the Form I-9 is the best tool currently available to employers to help them hire a legal work force. It isn’t perfect by any stretch of the imagination but it is what we have and it is the law.

The Form I-9 Is for Everyone You Hire – Yes, Even the Nanny!

The Senate Finance Committee published the findings of its review of documents submitted by Alan Bersin after his nomination to become Commissioner of U.S. Customs and Border Protection in the U.S. Department of Homeland Security. Mr. Bersin is currently the U.S. Attorney for the Southern District of California.

It seems only appropriate that an audit of I-9 forms for people employed by Mr. Bersin would be part of the review since it is the Department of Homeland Security that is responsible for enforcing Form I-9 compliance.  The Form I-9, Employment Eligibility Verification, is required for every person hired in the United States and must be completed by the employer no later than 3 business days after the date of hire.

Mr. Bersin employs 10 household staff members.  All 10 were treated as employees for tax reporting purposes, including unemployment taxes.  Some were paid by the hour and others were salaried individuals.  During a due diligence meeting, Bersin’s wife, Lisa Foster stated it did not occur to her to obtain I-9 forms for her household/domestic workers.  An incomplete I-9 for one of the employees was given to Ms. Foster by an employment agency.  Ms. Foster did not realize it was her responsibility to make sure the Form I-9 was completed properly.

If you have household help that you are paying as an employee, you must have a correctly completed Form I-9 on file. If you are a small business person and you are relying on a CPA, Employment Agency, or PEO to complete your new hire paperwork, you better make darn sure it is done correctly.  The Form I-9 is always ultimately the employer’s responsibility.  Leaving this important document in the hands of other may put you in hot water and could cost your business large amounts of money resulting from fines and penalties for Form I-9 violations.

The Redesigned Permanent Resident Card

On May 11, 2010, USCIS (U.S. Citizenship and Immigration Services) announced it will begin issuing a “new and improved” Permanent Resident Card, which most of us know as the Green Card.  In a moment of genius, the designers of the card decided to make it green in color for ease of recognition!

The new Permanent Resident Card incorporates state-of-the-art technology to prevent counterfeiting and facilitate accurate authentication. USCIS will now issue all Green Cards in the new, more secure format.  Recipients of the redesigned Permanent Resident Card will include those newly approved lawful permanent residents, as well as those who get a renewal or replacement card.

Although this seems to be a positive step in decreasing incidents of identity theft and document fraud, it creates more uncertainty for employers.  It becomes the employer’s burden to identify legitimate documents when many employers are not familiar with every version of the Green Card issued over time.

There have been several versions of the Green Card issued over the years.  The first Green Card was issued in 1946 and was referred to at that time as an Alien Registration Receipt Card.  Few of these are still in circulation; they contain no expiration date and as of March 20, 1996 are no longer valid evidence of permanent residency.  Other versions of the Resident Alien Card were issued in 1977 and again in 1989.  Neither the 1977 card nor the 1989 were green in color.

In 1997, the card was renamed to Permanent Resident Card and updated yet again in 2004.  Each time the card was updated, additional security measures were added. As for the most current version issued just this week, holders of older cards will only receive the redesigned Permanent Resident Card when seeking a renewal or replacement card.

Employers should choose to work with a qualified expert to help them navigate the complex requirements of the Form I-9.  Inspecting work authorization and identity documents is an integral part of meeting your responsibility to verify the work eligibility of each person you hire.  The experts at I-9 Okay have reviewed thousands of employee identity documents and are ready to assist you with all of your Form I-9 and E-Verify needs.

States Jump on the E-Verify Bandwagon

Most of you have heard about E-Verify for employers but you may not be paying close enough attention because you don’t think it is something you need to think about.  Well, you might want to think again!  The federal government already requires employer’s with federal contracts to use E-Verify for any employee assigned to the contract. Many states are passing laws requiring employers to use E-Verify and many more state have legislation pending.

As of today, 16 states require E-Verify in some capacity.  Arizona, Utah, South Carolina, and Mississippi require all employers to use E-Verify.  Idaho, Colorado, Nebraska, Minnesota, Missouri, and Georgia require state agencies and employers with state contracts to use E-Verify.  Virginia and North Carolina require state agencies to use E-Verify and several cities and municipalities have passed their own legislation.

E-Verify uses the Department of Homeland Security (DHS) and the Social Security Administration databases to verify employment eligibility to work in the United States.  After signing up to use E-Verify, the employer inputs information gathered on the Form I-9 into the E-Verify system to confirm the work eligibility of an individual in just a few seconds.  Unfortunately, the process of signing up and receiving approval for E-Verify can be cumbersome…but there is a simple solution.

An employer may contract with an E-Verify Designated Agent to utilize the federal database without having to go through the hassle of signing up, taking the training, and passing the mastery test.  An E-Verify Designated Agent is authorized to use E-Verify to check the employees of any company, with their permission of course.

Using a Designated Agent is a good solution for companies that don’t want to spend valuable resources on an administrative task.  It is a great solution for HR departments that are already stretched to the limit and can’t begin to think about adding one more thing to their busy schedules.

I-9 Okay is an E-Verify Designated Agent.  We are able to assist companies, large and small, with all of their E-Verify and Form I-9 compliance concerns.  E-verify has very specific rules of use…what you don’t know could hurt your company. The E-Verify specialists at I-9 Okay are experts in helping employers navigate the complex rules concerning E-Verify requirements and Federal contracts. Contact us today.

Protected: COMTO Colorado April 2010

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