Avoiding I-9 and E-Verify Problems

In order to ensure that they are employing legal workers,
many U.S. companies use I-9 forms and E-Verify (the
government’s electronic employment verification system) to
document that they have met their obligations for
verifying the identity and work authorization of their

Studies have found that a typical organization will often
have errors on more than half of their I-9 forms. This can
lead to steep penalties, the revocation of a business
license, debarment for federal contractors, and
discrimination and other damage claims from applicants.

According to John Fay, general counsel for LawLogix group,
five of the most common and dangerous mistakes that arise
when using I-9 forms and E-Verify are:

#1 Denying there is an I-9 problem. Some common I-9
mistakes include:
*Not ensuring that the employee signs the form.
*Using the wrong version – current form expires 3/31/2016.
*Completing the form after required deadlines:
***Section 1 by employee on or before the 1st day.
***Section 2 by company within 3 days of the start date.

#2 Waiting for Immigration and Customs Enforcement (ICE)
to show-up and find problems. A company should review the
I-9s and fix any errors prior to ICE showing up, which
will be seen more favorably than if it does nothing.

#3 Treating employees differently. Companies may not
request more or different documents than are required to
establish a worker’s identity and eligibility to work in
the U.S. and may not reject documents that appear to be
reasonably genuine. For example, employers may not
require applicants who appear “foreign” to produce green
cards. The employee gets to choose which of the
acceptable I-9 documents to present.

#4 Improperly retaining I-9 forms. Companies must retain
an employee’s completed I-9 for as long as the individual
works for the employer. Once the employee’s employment
has terminated, the business must determine how long after
termination to retain the I-9 — either 3 years after the
date of hire or 1 year after the date employment is
terminated, whichever is later. Form I-9 can be retained
either on paper or electronically.

#5 Not treating E-Verify seriously. A company is prone to
more audits if it uses E-Verify, Fay said. Some E-Verify
best practices include:
*Tracking state law.
*Centralizing operational control of the E-Verify chain.
*Understanding the nuances between I-9 and E-Verify
*Implementing a tentative non confirmation policy. If a
company receives a tentative non confirmation notice, “you
want to make sure you meet with the employee, go over
everything so that the employee understands what’s going
on, and print out the notice itself. ICE is tracking
that,” according to Fay.

HR POINTER: Employers should assign responsibility for
managing the I-9 forms and E-verify process to someone who
is familiar with the law and requirements (such as an HR
Manager). This person should ensure that he/she tracks
changes in the federal and state laws and periodically
reviews the company’s forms and processes.

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