Ten Tips for Staying on Top of I-9 Compliance
By Greg Siskind (gsiskind@visalaw.com) Siskind Susser, PC – Immigration Lawyers
Why should you care? 1. Do you want to have ICE cause you to fire a big percentage of your work force (assuming you have workers left before the audit is done? 2. Your job may be on the line. 3. Your access to government contracts or even your business license may be affected. 4. Do you look good in an orange jumpsuit?
Tip #1 – Study the M-274 This 65 page handbook is an excellent resource for learning to complete the I-9. There are form examples, numerous questions and answers and illustrations showing what documents are supposed to look like. The M-396 Guide to Selected US Travel and Identity Documents is also helpful. It’s put out by the Forensic Document Laboratory at ICE. Employer’s Immigration Compliance Desk Reference – by Greg Siskind http://www.shrm.org/Publications/Books/Pages/ImmigrationComplianceDR.a spx
Tip #2 – Centralize the I-9 process Many organizations delegate I-9 responsibilities to departments and branch locations and the individuals managing the I-9 process on behalf of the employer often are undertrained and poorly supervised in carrying out this responsibility. Furthermore, if you receive notice of an audit, pulling together all of your I-9 records in the 72 hours you’ll get will be really tough.
Tip #3 – Be careful how you delegate.
Don’t just throw the most junior person in your office on this function. Make sure you’re giving proper training and have at least a couple of people who know what they’re doing lest a person not be at work one day or the person leaves your employment in short order.
Tip #4 – Don’t forget about anti-discrimination rules
You can get in to trouble not just for forgetting to do the I-9s or filling them out incorrectly, but also if you are too zealous in how you handle them. Make sure you only ask for documents that are required. Don’t treat employees differently just because you suspect that they are not citizens. Don’t screen employees before actually hiring them by making them complete the I-9 forms first.
Tip #5 – Establish an IRCA compliance policy Do you have a policy? If not, it’s time set one up. What should it include? 1. Appoints an IRCA compliance officer 2. Advises on complying with employer sanctions and anti-discrimination rules 3. Contains rules for working with outside contractors 4. Sets training requirements for completing I-9 forms 5. Sets procedures when employees don’t meet IRCA requirements 6. Establish the timing and procedures for internal I-9 audits 7. List procedures for using E-Verify 8. Sets protocols for interacting with government officials in connection with IRCA compliance 9. Outlines re-verification procedures. Tip #6 – Conduct I-9 self audits before you get the real thing Do them periodically. If you can’t audit all of the records, set up a system to randomize what you review by departments, years of employment, types of positions, etc. Do a large enough sampling to be meaningful and then correct problems in a way that makes it apparent that a correction has been made (green ink and dating). Do a full review if you spot lots of problems.
Tip #7 – Make sure you deal with IRCA issues in your contracts
This applies to mergers and acquisitions as well as contracts with outside companies. Put clauses in your documents where the other side represents and warrants that they’re in compliance and indemnifies you for violations. In mergers, make sure you address I-9s in the due diligence stage and consider re-doing the I-9s upon closing even if you’re not required.
Tip # 8 – Take a look at an electronic I-9 system Advantages – Web-based so easy set up Idiot-proof “intelligent systems” that change questions depending on answers given (only correct documents show up on list depending on section 1 answered) Some information saves in the system and you can cut time Easier to monitor multiple sites Harder to mess up reverification May be more secure than paper Easier to respond to audits Can integrate more easily with payroll systems Can integrate with E-Verify Automates purging of documents Some systems trace I-94s and visa expiration dates
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Downsides –
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Not free What if you fire your I-9 company? Is your data yours? Internet dependent Quirky issues – what about employees where I-9 is done ahead of start date?
Tip # 9 – Purge I-9 forms you no longer are required to keep You are required to keep I-9 forms for a minimum of three years and after that, some of them can be destroyed. Here are the two rules to remember –
a. You must keep the I-9 for all employees still employed by you (except those hired before IRCA went in to effect in 1986 b. For terminated employees, you must keep the I-9 for at least three years from the date of hire or for at least one year after the termination date, whichever comes LATER.
Tip #10 – Don’t screw up the re-verification system This is a huge problem. Don’t file and forget. More than just I-9 fines at stake. Set up a tickler system – use Outlook if need be.