I-9 Compliance/E-Verify

Immigration and Customs Enforcement (ICE) announced June 15, 2011 that it will audit 1,000 new companies nationwide. This continues the government’s trend to use the I-9 audit process to check on employers’ compliance with employment eligibility verification requirements and impose costly penalties. For more information, see http://money.cnn.com/2011/06/15/news/economy/immigration_ice_audits/index.htm?iid=H_SB_News

If your company has received an ICE I-9 Notice of Inspection, contact Stern & Curray for an experienced response. If your company has not yet been the target of an ICE audit, contact Stern & Curray for a proactive review of your I-9 compliance strategies.

The government’s shift away from workplace raids to focus on employer worksite compliance continues. U.S. Immigration and Customs Enforcement (ICE) announced on February 17, 2011 that it had notified 1,000 companies around the U.S. of I-9 audits. A Notice of Inspection states that companies have three days to present I-9 forms for inspection. ICE indicated that companies of all sizes were included in this round of audits. http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

The Handbook for Employers is a guide to help employers in the Form I-9 process. It has been updated (Rev. 1/05/11) with new information about applicable regulations, including electronic storage and retention, and processing an employee with a complicated immigration status. There are new visual aids and examples of new relevant USCIS documents. The handbook also includes expanded guidance on lawful permanent residents, exchange visitors and foreign students, and employees porting to H1-B status. You can find The Handbook for Employers, also known as the M-274, on the United States Citizenship and Immigration Services website, www.uscis.gov.

All Colorado employers are subject to a possible employment verification law compliance audit by the Colorado Department of Labor and Employment (CDLE). Compliance audits may originate from complaints, random selection, or situations where there is reason to believe an employer has not complied. The purpose of the audits is to ensure that employers are fulfilling their obligation to adhere to the employment verification and documentation requirements specified in § 8-2-122, C.R.S. It has been reported that the CDLE is sending audit letters to two hundred employers each month.

The state employment verification laws are different and separate from federal I-9 requirements. For each new employee hired on and after January 1, 2007, Colorado employers must complete affirmation forms and retain copies of the employee’s Form I-9 identity and employment authorization documents. A sample affirmation form may be found at www.colorado.gov/cdle/evr.

The CDLE reportedly wants to educate companies about the state’s employment verification laws. However, companies should also be reminded that the law includes fines of up to five thousand dollars for the first offense and up to twenty-five thousand dollars for subsequent offenses for an employer who, with reckless disregard, fails to submit the required documentation when requested by the CDLE.

The Immigration and Nationality Act (INA) prohibits employers from treating employees differently during the I-9 process based on national origin or citizenship status. One way for employers to avoid discrimination is when the employee first completes the I-9 form. Employers should not request particular documents to verify identity and employment authorization and should let all employees choose which document(s) to present from the lists of acceptable documents.

Discrimination can also occur in other ways during the I-9 process. Hoover, Inc., a vacuum cleaner manufacturer, allegedly engaged in a pattern and practice of employment discrimination by requiring lawful permanent residents to produce a new green card when the green card they first presented for the I-9 expired. The INA provides permanent residents the same right to continued employment that U.S. citizens have without presenting new documentation. Since U.S. citizen employees were not asked to present new documents, the Justice Department determined that Hoover treated permanent residents differently during the I-9 process. The Justice Department reached a settlement with Hoover in November 2010, including payment of $10,200 in civil penalties.

Employers should not re-verify the employment authorization for a lawful permanent resident whose green card has expired after the employee is hired. Our firm is actively involved in assisting employers in the area of employee verification. Employers should contact us if they are interested in improving their verification procedures, and/or conducting an audit to determine if there is any current liability.

On June 13, 2010, USCIS launched its newly designed E-Verify online system. Employers should be advised that any company seeking to access E-Verify after this date, will need to complete the E-Verify tutorial.