The United States Citizenship and Immigration Services ("USCIS") recently revised its Handbook for Employers. Since November 6, 1986, employers have been required to use the Form I-9 to verify the identity and the employment eligibility of all new hires. At first blush this appears to be simple; the employee presents a driver's license for identity and a Social Security card to establish employment eligibility. But wait, are those documents authentic? It is difficult to say, unless the employer uses the voluntary E-Verify system to authenticate employee documents.
The revised Handbook for Employers will provide much-needed advice and direction on how to properly complete the I-9 document. The new handbook includes:
- New visual aids for completing the Form I-9;
- Examples of new relevant USCIS documents;
- Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (also referred to as TPS), and exchange visitors and foreign students;
- Expanded guidance on extensions of stay for employees with temporary employment authorization; and
- Information for employers in the Commonwealth of the Northern Mariana Islands.
For employers, some of the more important revisions provide answers to common questions. For example, the handbook:
- Explains that the three business days the employer has to complete Section 2 of the Form I-9 does not include the day of hire (see page 3 of the new handbook);
- Confirms that an employer should not initiate the I-9 process until the individual has accepted an offer of employment (see page 3);
- Provides instructions on how to deal with employee name changes (see page 19);
- Provides instructions on interruptions in the employment relationship, such as leaves of absence, layoffs, and mergers;
- Provides an easy-to-understand chart to assist an employer in calculating the retention period of an employee's I-9 (see page 23); and
- Provides important information for federal contractors that are subject to E-Verify (see page 35).
Will employers avoid I-9 audits if they follow the instructions in the new handbook? No, but they are less likely to have errors in their I-9 paperwork. With the employment-compliance inspection center created by Immigration and Customs Enforcement ("ICE") in January 2011, more employers are going to be audited. In fact, the latest rounds of I-9 audits are targeting a few regional fast-food chains. This new employment-compliance inspection center will allow ICE to focus more on coordination of inspections across state lines and not simply on local leads.
Are you subject to audit? Maybe, but it will probably depend on the nature of the industry you are in. Agriculture, hospitality, food service, food processing, and construction have been the most vulnerable industries because they rely more heavily on low-skilled workers. But make no — mistake any employer is subject to audit if credible evidence comes to the attention of ICE. And since ICE has hired more forensic auditors and agents, ICE has become more aggressive in pursuing I-9 audits.
Although employers have been required to complete the I-9 for new hires since November 1986, some employers have treated this requirement somewhat cavalierly, believing they are low-risk for an ICE audit. But ICE's new enforcement strategy, which provides undocumented employees with employment authorization documents if they will testify against their employer, now makes every noncomplying employer vulnerable. All it takes is one disgruntled employee to report credible evidence to ICE that the employer is harboring or continuing to employ undocumented aliens and an investigation and I-9 audit will be opened.
Therefore, employers should remain vigilant in ensuring that their I-9 process meets the requirements of the law. Employers should use their most recent W-2 wage report to confirm that they have a valid and properly completed I-9 for each employee. The employer should also make corrections to I-9s found to be improperly completed or lacking information. Again, the new revised handbook can provide the employer with critical information on completing such corrections to employee I-9s.
Employers should always consult competent employment counsel before taking any action against employees based on I-9 employment eligibility or identity document issues. If you are a federal contractor, you should be sure to enroll in and use E-Verify in compliance with the rules. Complying with the I-9 requirements may seem tedious, but with the new revised handbook, employers have a ready tool to assist them in completing the I-9 properly.
View the new M-274, USCIS Handbook for Employers.
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