Employers Get Ready, Set, Go . New 2 Page I-9 is HERE

On March 8, 2013, USCIS will release the much awaited, and somewhat dreaded, two page I-9 Form. Click here to see the advanced Fed. Register Notice.   You’ll see format changes, new fields (some mandatory, some optional), clarified instructions and much more.   Click here to see earlier-proposed versions of the form released on 3/27/2012 and 8/23/2012.   The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.”  Once available, a copy of the new form will be available on the USCIS webstite. Employers should begin using this new form immediately.

Here are a few key things to know:

By May 8, 2013, employers must be using the new form exclusively.  Using the old form after May 8 will be a basis for penalty assessment.

  • The timeframes for completing  and retaining the I-9 Form remain the same.
    • Section 1 of the Form I-9 must be completed (and signed) by the employee on the first day of work for pay or before the first day of work for pay, if the employer has offered the individual a job and if the prospective employee has accepted it.
    • Section 2 of the I-9 Form must be completed (and signed) by the employer within three business days of the employee’s first day of work for pay.
    • Section 3 of the I-9 Form (if required) must be completed by an employer if an employee’s employment authorization or documentation of employment authorization has expired – re-verification must occur on or before the employee’s work authorization expires.   An employer may choose to complete Section 3 when an employee is rehired (within three years of the date that Form I-9 was originally completed) or when an employee changes his or her name.
    • Just as with the expiring Form, employers must retain the new Forms for three years from date of hire or one year from date of termination whichever is longer.

For employers using an electronic I-9 system, ICE’s position remains: “buyer beware;” each employer is ultimately responsible for ensuring system compliance. Therefore, please ensure your vendor is aware of this new release. Do not be afraid to ask the tough questions to ensure your vendors system is compliant with the regulations. We know that some vendors, including LawLogix, are aware of this development and have been diligently working to make sure the new I-9 Form is timely available on their system.

How to Retain Original Hard Copy I-9s

Employers who  maintain their original I-9 forms in a paper file often struggle in creating and maintaining such a paper file.  Below are some suggestions:

1.  Keep your I-9 forms separate from other files such as personnel files.  In the event you are audited by ICE, you will have to produce your original I-9 forms within three business days.  Pulling each I-9 form out of a personnel file is very time-consuming.  Also, the required retention for I-9 forms (discussed further below) is likely different than the retention period for your personnel files.

2.  Create two I-9 form files one for active employees and one for terminated employees.  You will always need an I-9 form for an active employee.  In the active I-9 form file, put your I-9s in alphabetical order or some other order where you will be able to easily retrieve the ones you will need in the event of an audit.  Also, once an active employee is terminated, you will be able to easily move that employees I-9 form from your active I-9 form file to your terminated I-9 form file.

3.  In your terminated I-9 form file, create a folder for the current year and the next three years and then have separate folders for each month within each year.  For example, if you were to create a terminated I-9 form file today, you would have a folder for 2012, 2013, 2014, and 2015, each containing every month of the year.

4.  The retention requirement for I-9s is:  three years from date of hire or one year from termination, WHICHEVER IS LONGER.  Once you determine the retention requirement or date of destruction for each I-9 form for terminated employees, place that terminated employees I-9 form in the applicable month and year folder.  Once that month has passed, you can destroy those I-9s in that file.

You may hear others say that if you just keep I-9s for three years following termination, then you will be safe.  While this is technically true because under that method you would never destroy an I-9 form before its retention requirement has past, it best to not retain any more I-9s than you are legally required to keep.  All the I-9s forms in your possession  may  be subject to review during an audit, even if they are outside the retention requirement.

Finally, I suggest that you keep your I-9 form files confidential (e.g., locked up)  as they contain personal information about your employees.



Finally, Some Guidance on Electronic I-9s

Electronic I-9s, thanks to a Freedom of Information Act request from LawLogix, a memorandum from the Executive Associate Director of Homeland Security Investigations (HSI) that provides guidance to all HSI field offices on the collection of electronically generated I-9 forms and the minimum electronic audit trail requirements for use in contemplating civil fines was released to the public.

As background, every electronically generated or stored I-9, electronic I-9s must meet all of the requirements for electronic I-9 found in the regulations. One requirement is the form must be accompanied by an audit trail.   The HSI memorandum states in part that whenever an electronic Form I-9 record is created, completed, updated, modified, altered or corrected, a security and permanent record must be created (audit trail) that establishes the date accessed, who accessed it and what action was taken.  The HSI memorandum attaches a flow chart and example audit trial to illustrate the minimum acceptable standards for electronically generated I-9 forms.

The HSI memorandum also states that, in addition to the audit trail, special agents or auditors must request the name of the software product being utilized and any internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs for the electronically generated Forms I-9.

Moreover, the HSI memorandum states that the employer being audited should provide the indexing system identifying how the electronic information contained in the Form I-9 is linked to each employee and documentation of the system used to capture the electronic signature, including the identity and attestation of the individual electronically signing the Form I-9, or electronic I-9s.

Finally, the HSI memorandum recommends that special agents or auditors request access to the electronic system for a demonstration of the generation of an electronic I-9 form.

What is the take away?  Recall that HSI has very clearly stated in the past that it would hold employers responsible for the mistakes and errors of their electronic I-9 vendors, buyer beware.  While HSI agents and auditors may not have dug into the dirty details of these systems during past audits, the days of employers getting a pass due to a lack of guidance or knowledge have past.  If an employer is unsure if its electronic I-9 vendors system is in compliance with this guidance and the applicable regulations, now is the time to find out.

If you would like a copy of this memorandum, please contact us and we will be happy to send it your way.

Should Alabama Employers Consider Joining IMAGE?

What is IMAGE?  IMAGE stand for ICE Mutual Agreement between Government and Employer.   In my words, IMAGE is a government  outreach program to emphasize compliance relating to worksite enforcement.  IMAGE used to be considered by some as the bad boys club for employers who were facing significant liability for poor immigration practices and were forced to join the club as a remedial effort.  However, ICE made some changes to IMAGE in an attempt to improve its programs image.

I recently heard Adam Wilson, Section Chief of ICE, provide ICEs new selling points to employers to join IMAGE.  The employer must:

1.  Enroll in E-Verify within 60 days.  (Pursuant to the Alabama immigration law, all Alabama employers should already be enrolled in E-Verify);

2.  Establish a written hiring and employment eligiblity verification policy that includes internal Form I-9 audits at least once per year (No one knows how extensive or comprehensive the annual audit must be); and

3.  Submit to a Form I-9 inspection by ICE (Now thats something to think through before agreeing to it).

To entice employers to consider joining IMAGE, ICE will do the following:

1.  Waive potential fines if substantive violations are found on fewer than 50% of the employers I-9 forms (From my experience, some employers might exceed the 50% threshold);

2.  In the event more than 50% of the I-9 forms have substantive violations, mitigate the fines or fine at the  minimum of $110 per violation;

3.  Not conduct another I-9 inspection for two years (Is two years long enough?); and

4. Train the employer before, during and after the I-9 inspection (ICE probably provides good training, but the training is probably  from ICEs perspective only and not from the perspective of other government agencies such as the OSC).

Any takers?   There are definite pros, but there could be significant cons depending on the circumstances.  Definitely seek counsel before signing on the dotted line.

Initial Steps To Respond to a Notice of Inspection by ICE

ICE continues to serve employers with  Notices of Inspection (NOI) and subpoenas that request the production of I-9 forms and other documents. The latest wave of 2000 NOI’s went out within the last couple of weeks and more are scheduled to occur later this year.  Given the possible fines for substantive or uncorrected technical violations on I-9 forms, and the fact that many employers have audited their I-9 forms (through knowledgeable internal or external auditors),  knowing how to respond to a NOI can be critical to mitigating the exposure a company may face.

We recommend that all companies have an established  protocol to handle government subpoenas and inspections, which may include asking for identification from the government official, determining the purpose of the visit, and contacting individuals within the company (e.g., upper management, in-house counsel) to ensure that the companys rights are being protected.

Although an ICE forensic auditor will review the I-9 forms, a NOI is often served by an ICE agent or special agent, who may ask questions at the time the NOI is served.  Do not guess if you don’t know the answer, but simply state that you don’t know, and then direct the agent to someone in management or HR who can provide an answer.

After the ICE agent has left, it is critical that you immediately put together your team that will assist in responding to the NOI (HR, management, legal counsel).  Remember that you only have three business days to produce the I-9s.   You may request an extension of this deadline, but in our experience such requests are often denied.

While every NOI and company are different, here are some of the tasks the team should do:

  1. Read the NOI and accompanying subpoena carefully to determine what is being requested.
  2. Determine which member of the team will handle which tasks (e.g., pull payroll list, obtain I-9 forms). Organization of payroll rosters and knowledge of retention systems and files are often a big role in this process.
  3. Obtain expertise from experienced legal counsel on how to handle missing I-9s, I-9s that have errors, and other issues that may result in fines or problems.  Proper and careful remediation at this stage is critical, although remediation prior to ICE serving the NOI is much more beneficial.
  4. Carefully prepare the submission to ICE in an organized fashion, including a letter stating what is being produced.
  5. Keep a copy of everything that is being submitted.

Once you have responded to the NOI, you likely will have to wait to hear from ICE as to next steps.  These next steps, which may include a notice of suspect documents or a notice of technical deficincies, must be handled correctly to best mitigate possible fines.

What questions do you have about an ICE NOI?  Put a comment below.