The Form I 9 Compliance and E Verify

Immigrants First, PLLC
An Immigration & Human Rights Law Firm

The Form I-9 and E-Verify
Employment Eligibility Verification

Immigrants First, PLLC - All Rights Reserved

Immigrants First,PLLC

The Current Climate
"Just a small fine or a slap on the wrist is not a
deterrent...we see more robust criminal cases...the prospect
of 10 years in prison carries much sharper teeth than just a
small fine....We want to send the message that your cost of
business just went up because you risk your
livelihood, your corporate reputation and your personal
freedom."

"....individuals who have profited from hiring illegal
aliens....we're going after their houses, their Mercedes and
any money that they have, as well."

-Julie Myers, Department of Homeland Security Assistant Secretary for
Immigration and Customs Enforcement (Previous Director of ICE)



Remember: Equal Opportunity
and Fairness
Should an employer just stay away from anyone
who appears to be an immigrant?

An employer may not discriminate against foreign nationals
who are eligible to work in their candidate selection process.

An employer may not knowingly hire or continue to employ a
person who is not authorized to work in the US.

Knowingly = “Actual Knowledge” or “Constructive Knowledge”
(should have known).



Just how do employers check if an
employee is eligible to work in the US?
Since 1986, all U.S. employers have had the obligation to
document that they have verified the work eligibility of all new
workers with few exceptions. The government form that
employers are required to fill out is the Employment Eligibility
Verification or Form I-9.

The I-9 form is an immigration enforcement document that
shows that as an employer, you have reviewed your
employee’s identification and can attest that they are
authorized to work in the US.

In 1997, E-Verify was launched as aninternet-based system
that compares information from an employee’s Form I-9 to
data from DHS and SSA records to confirm employment
eligibility.



In Virginia…
While participation in E-Verify is voluntary for most
businesses, some companies may be required by state law or
federal regulation (such as government contractors) to use E-
Verify. The trend is for states to continue pass laws to add to
the list of employers for whom E-Verify is required.

In 2010, legislation was passed in Virginia to require that
beginning December 1, 2012, all agencies of the
Commonwealth of VA, must enroll and use the E-Verify
program for each newly hired employee. Then in March of
this year, Gov. McDonnell moved the start of the requirement
to June 1, 2011.

Also, current Virginia law makes it a class 1 misdemeanor for a
business to hire unauthorized workers. Although a recent
Supreme Court ruling makes this provision unenforceable.


The Argument Against

Mandatory E-Verify
Former congressman, Bruce Morrison, speaking on behalf of the
Society for Human Resource Management (SHRM), noted that while E-
Verify has provided a fairly reliable option for employers wishing to
participate in a pilot program, it remains inadequate for the task of
verifying all new hires. In particular, he offered the following criticisms
of the E-Verify system:
• The SSA database is flawed, with a 4.1% error rate in SS records
• The error rate will hamper the ability of legal workers to obtain jobs
• E-Verify remains a paper-based system as employers must still complete
the I-9 form and analyze one or more of 25 documents establishing
identity and/or work authorization
• E-Verify is unable to detect many forms of document fraud and identity
theft

He advocated the need for a federal solution to employment eligibility
verification, noting that dozens of states have already enacted a
confusing and complex patchwork of E-Verify legislation – a problem
particularly acute for multi-state businesses.



The Impact of E-Verify
Some feel that mandatory E-Verify is likely to harm the economy and
U.S. workers.

Immigrants in Virginia: Virginia is home to 805,742 immigrants in 2009.

Mandatory E-Verirfy without Immigration Reform will result in lost tax revenue
for Virginia: Households headed by unauthorized immigrants in Virginia paid
$165.3 million in state and local taxes in 2010, according to estimates prepared
by the Institute for Taxation and Economic Policy.

Unemployment may likely INCREASE as a result of E-Verify: Surveys of E-Verify
have found that between 0.8% and 2.3% of workers received an erroneous
response from E-Verify, meaning that they had to either correct their records or
lose their jobs. Applying those error rates to VA, we estimate that between
33,655 and 96,788 US Citizens and legal workers iin VA would either have to
correct their records or lose their jobs.

E-Verify will burden Virginia businesses: Currently, only 7,770 buinesses in VA
are enrolled in E-Verity, which amounts to less then 5% of all Virginia businesses.
Mandadory E-Verify would imean a 1,900% increase in a short period of time.


Fines for Non-Compliance
Fine per Occurance Description of Error
$100 - $1,100 Improper completion, retention, storage
or if not available for inspection
$250 - $11,000 Knowingly hiring an unauthorized worker

$3,000 – 6-months in prison Showing a pattern of hiring unauthorized
workers

Investigators have considerable discretion in assessing fines and will look at factors like
the size of the company, the seriousness of the violations, whether the employer was
trying to comply in good faith and the pattern of past violations.

It has been estimated that two-thirds of the average
company’s I-9s have at least one error or is missing.


Who must complete the I-9?
• Required for everyone hired after November 6, 1986.

• No exception for temporary or part-time
employees, unless employed by a third-party
(e.g., temp agency).

• Who is not required to complete the I-9:
– Independent Contractors or Sub-contractors
– Domestic workers in a private home – Note: Employment
must be sporadic, irregular or intermittent


When is the I-9 form completed?
• Employees must complete Section 1 on or before the
first day of employment (first day of paid work).

• Employer must complete Section 2 within three days
of the first day of employment. Employee must
present only original unexpired documents as
required by the form.
Do not use white-out. If a mistake occurs during completion of
the I-9 form, cross out the error, initial and date it, inserting the
correct information. Note: Only the person responsible for the
section with the error may correct that section of the document.



I-9 Section 1: Employee

Information and Verification
• Section 1 must be completed by the employee on or before
the start date.

• Employee certifies that he/she is a:
– U.S. citizen (Box 1), or
– Lawful Permanent Resident (Box 2), or
– An alien authorized to work for a specific period of time (Box 3).

• Employee signs and dates.



I-9 Form: Section 1
Only the employee may complete, sign and date Section 1.
Corrections to this section may only be made by the employee,
initialed and dated.



Section 2: Employer Review and Verification

• Section 2 completed by the employer within three business
days of the first day of employment.

• Employer examines one document from list A, or one from list
B and one document from and one document from list C.

• Employer attestation, signature, date.

• Employee must be physically present and employer must
review originial documents.



Section 2: Continued
• Employees must present an original document or documents
that establish identity and employment eligibility within three
days of starting their job. Employees can choose which
document(s) they want to present from the lists of acceptable
documents:

– List A establishes both identity and employment eligibility

– List B establishes only identity

– List C establishes only employment eligibility



List of Acceptable Documents for the I-9

Either, choose one from Or, one each from List
List A B and List C



• Section 2 completed by the employer within three business
days of the first day of employment.

• Employer examines one document from list A, or one from list
B and one document from and one document from list C.

• Employer attestation, signature, date.

• Employee must be physically present and employer must
review originial documents.



I-9 Form: Section 2



I-9 Section 3: Reverification
• Employer must complete Section 3 of I-9 to reverify work
authorization before expiration of date in Section 1.

• Do not need to reverify:
– US Citizens or Nationals (Section 1, Box 1).
– Lawful Permanent Residents (Section 1, Box 2) – unless employee
shows I-551 stamp and passport or re-entry permit.

• Completing Section 3: record document title, record new
expiration date, sign and date.



• Only need to reverify documents from List A or List C.

• Unless Section 3 is already filled in, not necessary to complete
new I-9 to reverify, but if you do, do it for all reverified
employees.

• If you’ve already filled out Section 3 for a prior
reverification, fill out a new I-9 and keep it with the original.

• Tickler for expiration date 180-days in advance. Remind
employee that a new employment doc will be required.


I-9 Form: Section 3



I-9 Form: Retention and Storage
• Must have an I-9 for everyone currently employed (except
those hired before November 7, 1986 and employed
continuously).

• Must keep I-9 on file for three years after date of hire OR one
year after date of termination, whichever is later.

• Separate I-9s into 3 groups: I-9s must be stored
separately from all
1. I-9s for people currently employed other personnel
records!!!
2. I-9s for people who need reverification
3. I-9s for those terminated



The E-Verify System
What is E-verify?
• In 1997, E-verify (initially known as ‘basic pilot program’)
was launched. E-verify is an on-line system employers can
use to instantly look-up and validate an employee’s
identity and work eligibility. This system must be used by
all government contractors and suppliers - - of which in the
D.C. metro area there are quite a few.

• In addition, private employers are increasingly voluntarily
using the E-verify system to check an employee’s work
eligibility and some states are passing laws to make more
employers subject to its mandatory usage.



Conclusion

• Immigration and Customs Enforcement (ICE) is
working hard to identify companies where
there may be illegal hiring practices.
• When an audit is called for, the business has
only three-days to prepare.
– It is recommended that a company will perform
an internal audit of their I-9s each year to be sure
they are present, complete and correct.


The Form I 9 Compliance and E Verify

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