“Top 10” Things Employers Need To Know About 1-9/E-Verify Compliance

Michele Warg
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Employers have many questions about I‐9 Form/E-Verify compliance and how a paperless Web-based I‐9 Form/E-Verify system solution can improve the efficiency of a company's employment eligibility verification program by reducing risk, eliminating errors, maintaining compliance, and ensuring jobs for legal workers. Here are the “Top 10” things employers need to know about I-9/E-Verify compliance. 1. What do employers need to fill out an I-9 Form? The Immigration Reform and Control Act (IRCA) of 1986 requires employers to use the Employment Eligibility Verification (I-9) Form – also known as the “I-9 Form” – to verify the identity and work eligibility of all employees (hired after 11/06/1986) and to properly complete the form when they hire an employee to perform labor or services in return for wages. IRCA introduced the 1‐9 Form when it made hiring an illegal immigrant a criminal offense, and established penalties for doing so. “I‐9 Compliance” is a term commonly used to explain the requirements of an employer to verify the employment eligibility of an individual employee in the United States. The term takes its name from the form used in this process: the Employment Eligibility Verification (I-9) Form. For more information, click here 2. What Is E-Verify? The E-Verify program was originally launched in 1997 with the full name of "Basic Pilot/Employment Eligibility Verification Program” as a voluntary employment eligibility validation program that involves verification checks by employers to determine an individual's right to work in the United States. This initiative is a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA). The U.S. Citizenship and Immigration Services (USCIS) – the agency in DHS responsible for immigration services – administers the program, while the U. S. Immigration and Customs Enforcement (ICE) enforces customs and immigration laws. Although the name has changed to E-Verify, some employers and business owners may still use its former name: “Basic Pilot Program.” For more information, click here 3. How Does E‐Verify Work? E‐Verify is a free, voluntary, and Web-based program run by the U.S. government that helps employers verify the employment eligibility of newly hired employees. Operated by the DHS and SSA – and enforced by ICE – E‐Verify allows employers to electronically compare information from I‐9 Forms with millions of records in the SSA and DHS databases. Within three days of hiring an employee, the employer is required to enter information from the Form I-9 including the employee’s name, date of birth, Social Security number (SSN), and citizenship status, into E-Verify and submits a securely transmitted “query.” Within seconds, the employer receives a response. For those employees whose work authorization status can be verified immediately, the process ends there with a confirmation response. In a small number of cases, the system issues a “Tentative Non-Confirmation” (TNC). When TNCs are issued, employers must notify employees of the TNC and give them eight (8) business days to contest the TNC with the SSA. Until the TNC is resolved – even if it takes longer than eight days – employees cannot be fired or have any other employment-related action taken against them. If the employee fails to contact SSA within the eight day period, a Final Non-Confirmation (FNC) is issued by E-Verify and the employee should be fired. For more information, click here 4. How accurate is E-Verify? E-Verify has proven to be over 99% accurate for all employees ultimately authorized to work. A government investigation of E-Verify in 2007 found 93% of employees queried through the system were verified within 5 seconds. Another 1.2% of employees were verified within 24 hours with no additional action required of either the employee or the employer. Most of the 5.8% of employees who received a tentative non-confirmation requiring more time turned out to be illegal aliens. Only 0.5% of the employees who were U.S. citizens or authorized foreign workers had to contact the Social Security Administration because of errors in the database. Overall, the 2007 study found that the accuracy rate of E-Verify was 99.5%. For the 0.5% who had to contact the SSA, many of the errors were ones that the workers themselves had made, such as a woman not notifying SSA of a change in her last name after a marriage. In addition, an independent study between April and June of 2008 by Westat found 96% of employees were verified instantly, 0.4% had to contact the government to resolve record errors, and 3.5% received final non-confirmations, meaning they were illegal aliens not having the legal right to work. For more information, click here 5. Do all U.S. employers have to use E-Verify? The use of the E‐Verify system, while not currently mandatory for all U.S. businesses, is required in some form in certain states, and its use is encouraged by the U.S. government to help ensure a higher level of compliance. While E-Verify usage remains voluntary throughout the country, some states have passed legislation making its use mandatory for certain businesses, with others have legislation pending. Twelve (12) U.S. states – Arizona, Colorado, Georgia, Idaho, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, and Utah – have some form of mandatory E-Verify laws. For more information, click here 6. What do Federal contractors and subcontractors need to know about E‐Verify? Federal contractors and subcontractors will be required to begin using the E‐Verify system starting September 8, 2009 to verify their employees’ eligibility to legally work in the United States. Federal contracts awarded and solicitations issued after September 8, 2009 will include a clause committing government contractors to use E‐Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000. Companies awarded a contract with the federal government will be required to enroll in E‐Verify within 30 days of the contract award date. They will also need to begin using the E‐Verify system to confirm that all of their new hires and their current employees directly working on federal contracts are authorized to legally work in the United States. For more information, click here 7. When should the I-9 Form & E‐Verify employment verification process begin? The employment eligibility verification process begins with the completion of the DHS's I-9 Form. This process must be completed within three (3) business days of the employee's start date. The employment eligibility verification process can be initiated before the employee's first day of work. However, the 1-9 Form cannot be completed until AFTER the individual has been hired. It is extremely important to note that the E‐Verify system CANNOT be used as a pre‐employment screening tool and must be conducted “post‐hire.” In addition, employers CANNOT terminate existing or potential employees over possible non‐confirmation of the data provided. For more information, click here 8. What happens after the I-9 Form has been completed? Once the I‐9 From has been filled out completely, it must be submitted to the DHS for verification of the information provided by the employee. This can be done by using the E‐Verify System. The employer has a total of three (3) working days from the new hire's start date to complete and submit the Form I‐9. As noted above, the process can begin before the start date. However, it cannot be completed until the individual has been hired. Employers must keep every employee's I‐9 Form on file according to the following guidelines: any current employee hired on or after November 6, 1986 must have the form retained, and; forms for employees who are no longer employed may be purged three (3) years after the employee's start date or one (1) year after the termination date – whichever date is later. For more information, click here 9. What happens if employers are NOT “I-9 Compliant”? The procedures listed in this article, established by the Immigration Reform and Control Act of 1986 (IRCA), are closely monitored and enforced by the government. Non‐compliance can result in severe penalties and/or sanctions for any company, large or small, and can include fines, debarment from competing for government contracts, criminal prosecution, and seizure of company assets. Any business is subject to Compliance Auditing by the government. ICE has recently declared that it is strengthening its enforcement efforts against employers that knowingly employ illegal aliens. ICE is not only targeting employers, but is also holding accountable individual executives, managers, and former managers who actually hired the illegal workers. Non‐compliance could even include failure to properly maintain I‐9 documents on employees that are not aliens. Non‐compliance can result in fines anywhere from $100 to $10,000 per violation, and forfeiture of the company's assets. ICE will intensify efforts to crack down on companies that knowingly hire illegal immigrants with help from the electronic verification system E-Verify. For more information, click here 10. What is the easiest way for employers to remain “I-9/E-Verify Compliant?” The integration with E‐Verify can be time consuming and users within a company must undergo training and pass the online mastery test. This can take several hours per employee. Unfortunately, management of the data, reproduction of reports for audits, electronic storage of documents, pre‐set reminders for expiring documents, automatic notification of document expiration, and step by step instructions for filling out the form are not included with the system. The bulk of errors that occur with the employment eligibility process are a result of difficulties involved with document management. In addition, if the government audits a company they WILL NOT accept paper forms for medium and large companies, so employers must scan paper forms into .pdf digital formats and give them the auditors within a 72 hour period. Companies may try to retain a thorough and accurate database of information on each employee in an attempt to comply with federal regulations. However, the intricacies within the guidelines of the ICE and ICRA are often complex and easy to misinterpret. Even the most careful program can fail to pass the scrutiny of government audits. To avoid audits, fines, penalties, and even possible jail time, many employers are turning to Third Party specialists to maintain I-9 Form/E-Verify compliance with the myriad of government regulations. Currently, only individuals and institutions certified by the U.S. government can utilize the E-Verify program. I‐9Compliance.com – a service for I-9 Form/E-Verify compliance offered by leading business solutions provider Pre-Employ.com – is a certified entity. All E‐Verify Third Party Agents must register online and sign a “Memorandum of Understanding” with the Social Security Administration (SSA) and US Citizenship and Immigration Services (USCIS). As outlined in the E-Verify Memorandum of Understanding, employers are liable for inappropriate use of E-Verify and need to dedicate sufficient resources so that the system is used correctly. Services like I‐9Compliance.com are designed to help employers meet complex and challenging employment eligibility requirements in a completely paperless environment. I‐9Compliance.com’s low‐cost, easy‐to‐use Web-based service walks employers through the entire employment eligibility verification process, makes anyone a Form I‐9/E‐Verify expert, and gives businesses the visibility and reporting needed to manage the program with confidence. I-9Compliance.com helps employers maintain full Form I-9/E-Verify compliance, reduce risks, eliminate errors, and ensure jobs for legal workers. For more information, click here About the author: Tom Ahearn blogs about topics such as I-9/E-Verify compliance, background screening, drug testing, privacy rights, and identity theft. 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