Business Immigration Compliance: I-9 Compliance, E-Verify

Introduction

Business immigration compliance is a critical aspect of employment law in the United States, focusing on ensuring that employers hire individuals who are legally authorized to work in the country. Two key components of this compliance framework are I-9 verification and E-Verify. These systems work in tandem to help employers maintain a legal workforce and avoid potential penalties associated with hiring unauthorized workers.

In today's globalized economy, with an increasingly diverse workforce, understanding and implementing proper business immigration compliance procedures is more important than ever. This guide will explore the intricacies of I-9 compliance and E-Verify, providing employers and employees with essential information to navigate this complex area of law.

Historical Context and Legal Background

The foundation of modern business immigration compliance in the United States can be traced back to the Immigration Reform and Control Act (IRCA) of 1986. This landmark legislation introduced significant changes to U.S. immigration law, including the establishment of employer sanctions for hiring unauthorized workers and the creation of the Form I-9.

The Immigration and Naturalization Service (INS), which has since been replaced by the Department of Homeland Security (DHS), developed Form I-9 as the primary tool for employment eligibility verification. This form became the cornerstone of the verification process, requiring both employers and employees to attest to the employee's work authorization status.

As technology advanced and concerns about unauthorized employment persisted, the government introduced E-Verify in 1996. Initially launched as a pilot program, E-Verify has since evolved into a comprehensive electronic verification system used by employers across the country.

Current Legal Framework

Form I-9 Requirements

The U.S. Citizenship and Immigration Services (USCIS) oversees the Form I-9 process. According to USCIS guidelines, all U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States, including citizens and noncitizens. The form serves to verify the identity and employment authorization of the hired individual.

Key requirements for Form I-9 compliance include:

1. Employees must complete Section 1 of Form I-9 no later than the first day of employment.
2. Employers must complete Section 2 by examining evidence of identity and employment authorization within three business days of the employee's first day of employment.
3. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

More information on Form I-9 requirements can be found on the USCIS website.

E-Verify System

E-Verify is a web-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It allows enrolled employers to electronically verify the employment eligibility of their newly hired employees.

Key aspects of E-Verify include:

1. E-Verify is voluntary for most employers but mandatory for some, including certain federal contractors.
2. The system compares information from an employee's Form I-9 to records available to DHS and SSA to confirm employment eligibility.
3. E-Verify must be used for new hires only and cannot be used to verify current employees, except in specific circumstances.

Detailed information about E-Verify can be found on the official E-Verify website.

Key Components and Concepts

Form I-9 Process

The Form I-9 process consists of three main sections:

1. Section 1: Employee Information and Attestation
2. Completed by the employee no later than the first day of employment
3. Requires basic personal information and attestation of work authorization status
4. Section 2: Employer or Authorized Representative Review and Verification
5. Completed by the employer within three business days of the employee's first day of employment
6. Requires examination and recording of documents that establish identity and employment authorization
7. Section 3: Reverification and Rehires
8. Used for reverifying employment authorization for current employees with expiring work authorization
9. Also used for rehires within three years of the date Form I-9 was originally completed

E-Verify Process

The E-Verify process involves the following steps:

1. Employer enrollment in the E-Verify program
2. Completion of Form I-9 for new hires
3. Creation of an E-Verify case based on information from Form I-9
4. Automated check of employee information against government databases
5. Receipt of an Employment Eligibility Result (usually within seconds)
6. Follow-up actions based on the result received

Rights and Responsibilities

Employer Responsibilities

1. Complete Form I-9 for all new hires, regardless of citizenship or national origin
2. Examine original documents presented by employees, ensuring they appear genuine and relate to the individual
3. Retain Form I-9 for the required period (three years after the date of hire or one year after the date employment ends, whichever is later)
4. If using E-Verify, create cases for all new hires within three business days of their start date
5. Avoid discriminatory practices in the verification process

Employee Rights

1. Choose which acceptable documents to present for Form I-9 verification
2. Be informed if the employer uses E-Verify
3. Receive prompt notification of any E-Verify Tentative Nonconfirmation (TNC) result
4. Contest a TNC and continue to work during the E-Verify resolution process
5. Be protected from discrimination based on citizenship, immigration status, or national origin

Common Issues and Challenges

1. Document Fraud: Employers must be vigilant in detecting fraudulent documents while avoiding discriminatory practices.
2. Reverification Errors: Failing to reverify employment authorization for employees with temporary work authorization can lead to compliance issues.
3. E-Verify Timing: Creating E-Verify cases outside the three-day window after an employee's start date can result in penalties.
4. Over-documentation: Requesting more or different documents than required by Form I-9 can be considered discriminatory.
5. Remote Hiring: Ensuring proper completion of Form I-9 for remote employees can be challenging, especially during the COVID-19 pandemic.

Case Studies and Notable Examples

1. Asplundh Tree Experts, Co. (2017): The company was ordered to pay $95 million in the largest civil settlement agreement ever levied by Immigration and Customs Enforcement (ICE) for knowingly hiring and retaining unauthorized workers.
2. Waste Management of Texas (2015): Settled with the Department of Justice for $5.5 million over allegations of excessive documentary practices in the I-9 process, which discriminated against work-authorized non-U.S. citizens.
3. Infosys Limited (2019): Paid $800,000 to settle allegations of I-9 paperwork violations, including failing to maintain I-9 records for many employees.

Best Practices and Compliance Strategies

1. Implement a comprehensive I-9 compliance program, including regular internal audits.
2. Train HR personnel and hiring managers on proper I-9 and E-Verify procedures.
3. Use electronic I-9 systems to reduce errors and improve record-keeping.
4. Establish clear procedures for addressing E-Verify TNCs and Final Nonconfirmations.
5. Conduct regular self-audits of I-9 forms and E-Verify cases to identify and correct errors.
6. Stay informed about changes in immigration law and compliance requirements.
7. Consider using authorized representatives for remote hires to complete Form I-9 in person.

Recent Developments and Proposed Changes

1. COVID-19 Flexibility: DHS implemented temporary policies allowing remote document inspection for Form I-9 during the pandemic. Employers should stay informed about the status of these flexibilities and any permanent changes.
2. E-Verify Modernization: USCIS is continually updating the E-Verify system to improve user experience and reduce errors. Recent updates include enhanced case management features and improved integration with electronic I-9 systems.
3. State-Level Requirements: Some states have implemented their own E-Verify mandates. Employers should be aware of any state-specific requirements in addition to federal regulations.
4. Increased Enforcement: ICE has signaled intentions to increase worksite enforcement actions, emphasizing the importance of strict compliance with I-9 and E-Verify requirements.

Resources for Further Information

1. USCIS I-9 Central: Comprehensive resource for Form I-9 information and updates.
2. E-Verify User Manual: Detailed guide for employers using the E-Verify system.
3. Department of Justice Immigrant and Employee Rights Section: Information on avoiding discrimination in the employment eligibility verification process.
4. ICE Worksite Enforcement: Updates on enforcement actions and compliance requirements.
5. USCIS Handbook for Employers M-274: Comprehensive guide to the Form I-9 process.

By adhering to these guidelines and staying informed about the latest developments in business immigration compliance, employers can maintain a legal workforce, avoid costly penalties, and ensure fair treatment of all employees regardless of their citizenship or immigration status.