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I-9 E-Verify Immigration Compliance

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  1. USCIS Launches New Website E-Verify

    By: Bruce Buchanan, Sebelist Buchanan Law



    USCIS has launched a new website, E-Verify.gov. USCIS describes it as the authoritative source for information on electronic employment eligibility verification. E-Verify.gov is for employers, employees and the general public.

    The website provides information about E-Verify and Form I-9, Employment Eligibility Verification, including employee rights and employer responsibilities in the employment verification process. E-Verify.gov allows employers to enroll in E-Verify directly and permits current users to access their accounts. Individuals with myE-Verify accounts can also access their accounts through E-Verify.gov.

    “For the past decade, E-Verify has been the cornerstone of our continued commitment to helping employers maintain a legal workforce,” said USCIS Director L. Francis Cissna. “E-Verify.gov now allows users to better understand and navigate through the employment verification process.”

    Employers can access E-Verify anytime, anywhere directly from a web browser. Nearly all employees are confirmed as work-authorized instantly or within 24 hours. The system has nearly 800,000 enrolled employers, which is still a small percentage of total employers in the United States.

    If you want to know more information on E-Verify, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
  2. Requirements of Form I-9 recordkeeping

    By: Bruce Buchanan, Sebelist Buchanan Law




    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379), Greg Siskind and I discuss Form I-9 recordkeeping. Here is Chapter 4 from the book.

    4.1 What are the Form I-9 recordkeeping requirements?

    Employers must keep Forms I-9 for all current employees, though the forms of certain terminated employees may be destroyed. In the case of an audit from a government agency, the forms must be produced for inspection. The forms may be retained in either paper or electronic format as well as in microfilm or microfiche format.

    4.2 When can a Form I-9 be destroyed?

    For terminated employees (the date employment ceased or ceased in the United States for employees transferred abroad), the form must be retained for at least three years from the date of hire or for at least one year after the termination date, whichever comes later.

    Employers should note two dates when an employee is terminated. The first is the date three years from the date of the employee’s date of hire. The second is the date one year from the termination date. The later date is the date until which the Form I-9 must be retained.

    There is a different rule for recruiters or referrers for a fee. Those entities are required to maintain Forms I-9 for only a three-year period from the date of hire, regardless of whether the employee has been terminated.

    In addition to establishing a reminder system to re-verify Forms I-9, employers should establish a tickler system to destroy forms no longer required to be retained.

    4.3 Should recordkeeping be centralized at a company?

    Keeping records in one location is generally advisable because it is easier to conduct internal audits to ensure the employer is complying with the rules of the Immigration Reform and Control Act (IRCA), and also to more easily prepare for a government inspection, given that having the forms at one location will allow more time for review. However, there may be situations in which keeping the records at each location is more convenient or practical.

    The forms themselves can be kept onsite or at an offsite storage facility as long as the employer is able to produce the documentation within three days of an audit request from a federal agency.

    4.4 Does an employer need to keep copies of the documents presented by the employee?

    No, retaining copies of the supporting documents is voluntary except in certain circumstances where using E-Verify. Under E-Verify, if an employee presents a Permanent Resident Card, Employment Authorization Document or U.S. passport or passport card as the verification document, the employer must make a copy of that document and keep it on file with Form I-9.

    Employers can retain copies of documents and must keep the copies with the specific Form I-9. Although retaining copies of documents may leave an unnecessary paper trail for government inspectors, maintaining documentation could provide a good faith defense for an employer that needs to show it had reason to believe an employee was authorized even if the paperwork was not properly completed. Retaining copies of documents also makes it easier for an employer to conduct internal audits to ensure compliance; this allows the attorney or other auditor to see what documents were actually provided to the Human Resources representative responsible for completion of the Form I-9. Furthermore, if copies are retained and some data are missing in Lists A, B, or C, such as the issuing authority or expiration date, it is only a technical error, not a substantive one.

    Whatever a company decides, however, it is important that the policy be consistently applied and to remember that simply having copies of the documents does not relieve the employer of responsibility for fully completing Section 2 of the Form I-9.

    Consistency is paramount. Employers should keep all the documents or keep none of them because keeping copies for only certain employees could open the employer up to charges of discrimination.
    In Tennessee, for those employers with less than 50 employees, an employer must copy and maintain a certain designated document (such as an unexpired U.S. passport, permanent resident card, Employment Authorization Document, birth certificate, certificate of naturalization, or state-issued driver’s license or identification) unless the employer uses E-Verify. Of course, E-Verify has its own rules on what documents must be retained. If the employer in Tennessee has 50 or more employees, it must utilize E-Verify, as of January 1, 2017.

    In Louisiana, employers must retain an employee’s picture identification and a copy of a U.S. birth certificate, certificate of naturalization, certificate of U.S. citizenship, or a Form I-94 with an employment-authorized stamp for all employees, unless the employer uses E-Verify.

    4.5 Can a Form I-9 completed on paper be stored in another format?

    Yes. In addition to paper, Forms I-9 may be retained in an electronic, microfilm, or microfiche format. The U.S. Department of Homeland Security (DHS) suggests the following with respect to microfilm or microfiche:


    • Use film stock that will last the entire retention period (which could exceed 20 years for some businesses).
    • Use equipment that allows for a high degree of readability and that can be copied onto paper.
    • For microfilms, place the index at the beginning or end of the series; and for microfiche, place the index on the last microfiche.


    4.6 Should the Form I-9 records be kept with the personnel records?

    Keeping Form I-9 records with personnel records is generally a bad idea. First, it could compromise the privacy of employees by allowing government inspectors to review items that are completely unrelated to the Form I-9. Employers that want to prevent this would have to manually go through the personnel records and pull the Form I-9 paperwork, some-thing that could cost valuable time as the employer prepares for the government inspection. Keeping the Forms I-9 separate will make it easier to conduct internal audits to ensure compliance with the Immigration Reform and Control Act (IRCA) and to re-verify forms as needed.
  3. E-Verify Modernization Temporarily Postponed

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

    The E-Verify modernization launch has been postponed from March 23, 2018 to a later date still to be determined. New system enhancements will feature improvements to photo matching, reduced Tentative non-confirmations and easier and faster creation of cases.

    The following are some of the highlights of upcoming E-Verify enhancements:


    1. Streamline the Tentative non-confirmation (TNC) process so that cases are sent to SSA and DHS simultaneously. If both agencies issue a TNC, then a dual TNC will be issued instead of two separate ones. The employee will be given a combined SSA and DHS Further action notice.
    2. Provide real-time feedback on errors.
    3. Prevent user in a Pending Termination status from submitting new cases.
    4. Streamline the E-Verify case creation process by removing unnecessary pages and steps in a case.
    5. Alert users earlier in the case creation process when a case is created, and duplicate is found. Users enter limited information and then the system checks for duplicate cases. If one or more duplicate cases are found, the user will be notified.
    6. Allow users to enter multiple names in the “Other Last Names” field so E-Verify can check all names entered in the field. If the employee doesn’t provide other last names, the user will have to check a box indicating that no other last names were provided on the employee’s Form I-9 to continue the case.
    7. Change the “Hire Date” to the employee’s first day of employment.
    8. Make the photo-matching process more compatible with smartphones and tablets.
    9. Created an, “Are You Sure?” alert that is personalized to the user and only shows fields that may have triggered a TNC rather than showing all fields.
    10. Require users to enter reason why employee is working after receiving a Final Non-confirmation (FNC).

    If you want to know more about E-Verify and I-9 compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.

  4. When does an Employer Need to Re-Verify?

    By: Bruce Buchanan, Sebelist Buchanan Law



    In our book, I-9 and E-Verify Handbook (http://www.amazon.com/dp/0997083379),
    Greg Siskind and I discuss reverification. Here is an excerpt from the book.

    3.1 What are the Form I-9 re-verification requirements?

    If an employee is not a U.S. citizen, lawful permanent resident, or noncitizen national, he or she is likely working based on a status with a defined end date. For these employees, the employer must note the expiration date of their documents on the Form I-9 and then must pull the employee’s Form I-9 before the expiration date and re-verify that the employee’s status has been extended. Employers should establish a reliable tickler system to prompt re-verification. Aside from complying with the re-verification rule, this system will also ensure that an employer that needs to extend a work visa for an employee will not forget to take care of this critical task (something that is, unfortunately, neglected by many employers and can result in an employee falling out of legal status). Green cards and passports with expiration dates do not need to be re-verified.

    3.2 What if the re-verification section of the form has been completed from a prior re-verification?

    In this case, an employer can complete and sign Section 3 of a new Form I-9. The employer should put the employee’s name in Section 1 and retain the new form with the original.

    3.3 Can an employee present a Social Security card to show employment authorization at re-verification when he or she had presented an expiring Employment Authorization Document or Form I-94 at the time of hire?

    Yes, an employee may present a Social Security card to show employment authorization at re-verification as long as the Social Security card is not restricted with a statement such as “not valid for employment,” “valid for work only with DHS [U.S. Department of Homeland Security] authorization” or “valid for work only with INS [Immigration and Naturalization Service] authorization.” If the Social Security card has this language, it is not a valid List C document. This type of Social Security card must be accompanied by an Employment Authorization Document (EAD) to be valid. Employers may not specify which documents an employee may present either at the time of hire or at the time of re-verification. An employee may have become a lawful permanent resident or otherwise received employment-authorized status allowing the employee to obtain a Social Security card, absent the sponsorship of the employer, so the employer should not assume the employee is unauthorized.

    3.4 What if a new Form I-9 comes out between the date the initial Form I-9 is completed and the time of re-verification?

    If a new Form I-9 has been released between the date of hire and the date of re-verification, the employer should complete Section 3 of the new version of the Form I-9 and accept only documentation of employment eligibility from the Lists of Acceptable Documents in the Form I-9 instructions. However, the U.S. Department of Homeland Security (DHS) will accept use of Section 3 on the existing completed Form I-9 if it has not been previously completed for prior re-verification.

    3.5 Do past employees resuming work with a company need to complete a new Form I-9?

    Returning employees often do not need to complete a new Form I-9, but if that is not done, the employer needs to re-verify the employee’s work authorization in Section 3 of the Form I-9, if the formerly listed work authorization has expired. If a new version of the Form I-9 has come out since the last time the Form I-9 was completed, the employer may complete a new form or use Section 3 of the existing completed Form I-9. And if the form has been completed in Section 3 from a previous re-verification, the employer should complete Section 3 of a new Form I-9.
    For an employee to be considered a “rehire,” the employer must be re-hiring the employee within three years of the initial hiring date of the employee, and the employee’s previous grant of work authorization must not have expired. Employers must:
    1. record the rehiring date;
    2. if the formerly listed work authorization has expired, write the document title, number, and expiration date of any eligible document presented by the employee;
    3. sign and date Section 3; and
    4. if the re-verification is recorded on a new Form I-9, write the employee’s name in Section 1.

    Of course, it may be easier just to complete a new Form I-9, and an employer can certainly opt for this. Note that the rules on returning employees also apply to cases of recruiting or referring an individual.

    3.6 What if a rehired employee is rehired after a new version of the Form I-9 is released?

    If the Form I-9 has been modified since the form was completed on the date of hire, the employer may complete Section 3 of the existing completed Form I-9 or Section 3 of the new form and attach the old form. The employee should provide documentation of continued employment authorization from the current Lists of Acceptable Documents provided in the Form I-9 instructions.

    3.7 What if an employee changes his or her name?

    An employee’s name change should be recorded by the employer in Section 3, although it is not mandatory to complete Section 3 for a name change. If an employee requests such, it is a best practice for the employer to request a document reflecting the name change, such as a marriage certificate or divorce decree.
    Reverification is often misunderstood by HR. Thus, it is important to know how to re-verify. It’s also important to know when not to re-verify. This is covered elsewhere in the book. The most important point on when not to re-verify is this – do not reverify after a permanent resident card, passport or driver’s license expires.
  5. I-9 and E-Verify Handbook – Book Review

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    As many of you know, Greg Siskind and I have published a book, The I-9 and E-Verify Handbook (2nd edition). If you would like to know more about the book, SHRM has just published a positive book review, where they discuss various aspects of the book. You may view the review at: https://www.shrm.org/hr-today/news/h...d-everify.aspx

    If you would like to purchase the book, it is available at Amazon -http://www.amazon.com/dp/0997083379.
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