With immigration issues as a centerpiece in President Trump’s administration, it should come as no surprise that I-9 audits are expected to increase amid penalties for I-9 violations increasing in the past year as well. A potential mandate that E-Verify be used to check the employment status of every U.S. worker may also be on the horizon.
Now is the time to be confident that your employment eligibility process for new hires is rock solid. But how can you be sure?
First, use the new Form I-9 (currently dated 11/14/2016) required for employer usage as of January 22, 2017. According to the U.S. Citizenship and Immigration Services (USCIS), this form is designed to be easier to complete electronically, with changes and enhancements including:
- Prompts, drop-down lists and calendar auto-fills to ensure information is entered correctly.
- Space for up to five individual preparers/translators to sign and date.
- A dedicated area for additional information (no more writing in the margins).
- Real-time error notifications if information is not entered properly.
- An option to clear the form and start over.
- An automatically generated quick response (QR) code to track completed forms.
Second, if you’re not already running worker eligibility information through E-Verify, you should consider starting. Many states already mandate its usage and, soon, there could be a mandate coming from the federal level. E-Verify uses Form I-9 information to compare with other records available through the U.S. Department of Homeland Security but also requires additional information including a social security number and a photo. That being said, the online process is reported to take mere seconds for results as long as the information matches.
Third, it’s important to ensure that your employment verification process beyond filling out Form I-9 and E-Verify doesn’t raise legal concerns. Employers must retain a Form I-9 for each person hired—and can do so via paper, microform or electronically—but there are specific rules when it comes to photocopying and retaining these forms. The USCIS states that:
- Once the individual’s employment has terminated, the employer must retain the Form I-9 for three years after the date of hire, or one year after the date employment is terminated, whichever is later.
- You may retain completed paper forms on-site or at an off-site storage facility for the required retention period, as long as you are able to present the Form I-9 within three days of an inspection request.
- If you electronically store Form I-9s, make sure your system is in compliance with USCIS requirements.
Other violations that often occur have to do with discrimination. Some areas to note here include:
- It’s important to understand when and how reverification may need to happen as well as how automatic extensions of employment and other special circumstances should be handled.
- If you choose to retain copies of an employee’s documents, you must do so for all employees, regardless of actual or perceived national origin or citizenship status.
- You cannot request certain documentation or information from certain people based on their national origin, citizenship, or immigration status. Each individual must be allowed to choose the documents that they will present from the lists of acceptable Form I-9 documents.
- You cannot limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law, regulation, executive order, or federal, state, or local government contract.
- However, you can have a general policy that your company does not sponsor employment visas.
- You cannot intimidate, threaten, coerce, or otherwise retaliate against an individual because the individual has filed or participated in an immigration-related employment discrimination charge or complaint.
Employers who violate these areas noted above or who knowingly hire, recruit for a fee, or refer for a fee unauthorized aliens could face a number of civil fines, criminal penalties, debarment from government contracts, or court-ordered repayment. Employers really must pay close attention to these rules. For more information, take a look at the USCIS’s I-9 Central.
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The BTD Blog is a legal resource about issues important to Texas employers. The blog is written by Amy Beckstead, Jana Terry, Connie Ditto, and Sara Garcia, who are all attorneys at Beckstead Terry Ditto PLLC.