Immigration and Business Visa Law Guide to I-9s and AUDITS
Under the Immigration Reform and Control Act (IRCA), an employer may only hire employees who are legally authorized to work in the United States. 8 C.F.R. 274a(b)(2)(B)(ii) requires employersto maintain Employment Eligibility Verifications (Form I-9) in original form, microfilm or microfiche. The Employment Eligibility Verification (Form I-9) is unique, in that Forms I-9 are initiated and stored by employers rather than being forwarded and subsequently stored at a U.S.
Government facility. As a result, the intention of 8 C.F.R. 274a(b)(2)(B)(ii) was to allow employers to utilize their existing business document storage media for Forms I-9 so that a
separate, technology-inhibited, document storage practice was not levied on employers, forcing employers the additional cost of a government-mandated storage medium exclusive of an
employer’s reasonable and customary storage medium.
To verify identity and employment eligibility, a Form I-9 Employment Eligibility Verification must be completed for every new employee. Section 1 must be completed on the first day of employment, and Section 2, employer verification and review of documents, generally must be completed within three business days of commencement of employment. An employer must determine whether the documents presented by the employee reasonably appear to be genuine; however, at the same time, the employer must not discriminate against employees based on national origin or citizenship by refusing documents that appear genuine and are permitted by law.
In the last year, Immigration and Customs Enforcement (ICE) raids have focused attention on an employer's liability when employing unauthorized workers. The plight of Swift & Company’s meat processing plant highlights the difficulties in identifying unauthorized workers, and the importance of complying with Form I-9 laws and being prepared in the event of an ICE audit or raid.
I-9s must be kept on file for at least three years after date of hire, or one year after employment ends, whichever is later. Employers should always keep Form I-9s separate from other personnel records and separated into current and terminated employees. We recommend that employers do not retain copies of documents presented during the verification process. Employers should also routinely review the terminated employee I-9s to purge those documents beyond the 1-year past termination/3 years past hire timelines.
Employers should also have a plan in place in the event a Social Security no-match letter is received. Social Security “no-match letters” is a notice sent by the Social Security Administration (SSA) to employers and employees to inform them that the employee name or Social Security number listed on an employee’s W-2 does not match the SSA records. The letter is merely an administrative mechanism of the SSA to notify employers and employees of the discrepancy and to advise the employees that they are not receiving proper credit for their earnings, which can affect future retirement or disability benefits administered by the SSA. This letter is sent by the Social Security Administration (SSA) when an employee's name and social security number on W-2 Forms do not match SSA records. A no-match letter does not mean that an employee is not authorized to work, and terminating an employee based on the letter could result in discrimination charges.
A proposed Department of Homeland Security (DHS) regulation sets forth safe harbor procedures for employers who receive a no-match letter. Under the proposed regulation, if an employer follows the following steps after receiving a no-match letter, DHS will not allege that the employer had constructive knowledge that it was employing an unauthorized worker:
1. Employer should check its records to determine whether the discrepancy results from a clerical error. In this case, the employer should correct its records, inform the relevant agencies, and verify that the corrected name and number match agency records.
2. If there is no clerical error, the employer should request the employee to confirm that the employer's records are correct. If the employee verifies that the records are correct, the employer should ask the employee to pursue the matter personally with the relevant agency.
3. If the discrepancy is not resolved within 60 days, the employer must verify the employee's identity by completing a new Form I-9. If the employee's identity and work authorization cannot be verified at this point, the employer must terminate the employee or risk the possibility that DHS will determine that the employer had constructive knowledge that it was employing an unauthorized worker.
Employers should keep in mind that this is only a proposed regulation, and in some cases, compliance with the safe-harbor procedures could result in discrimination claims against the employer.
Employers may also elect to participate in the Social Security Verification System, the Basic Pilot Employment Verification Program, administered by the U.S. Citizenship and Immigration Services (USCIS), or the IMAGE Program, administered by the ICE. All are voluntary programs designed to help companies reduce unauthorized employment and the use of fraudulent identity documents. However, as evidenced by the recent raids at Swift & Co., there is no guarantee that participation in any of these programs will eliminate the employment of unauthorized workers or the possibility of a raid.
In order to prepare for I-9 audits, it is recommended that employers conduct I-9 self-audits. During periodic I-9 self-audits, employers should carefully review I-9s for completion and accuracy, correct deficiencies, and date and initial any changes that are made. Employers should also assure that I-9 reverification is being completed as required.
In the event of an I-9 audit, employers generally will have three days after receiving notice to turn over Form I-9s to DHS. Employers should consider delivering the I-9s to DHS, as opposed to having DHS examine the forms at the employer's site. In this case, file copies should be made of any documents taken to DHS in case they are needed for future reference.
Both the revised Form I-9 and the "Handbook for Employers, Instructions for Completing the Form I-9" are available online at www.uscis.gov.